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[ { "docid": "22309524", "title": "", "text": "right to treatment given to her by the Mental Health and Mental Retardation Act of Pennsylvania ; this court may order that course of treatment best suited to meet Joyce’s needs. Id. at 10-11. (Emphasis supplied). It is abundantly clear that the Mental Health and Mental Retardation Act, 50 P.S. §§ 4201 et seq., grants to the retarded in Pennsylvania the statutory right to minimally adequate habilitation. See Eu-banks v. Clarke, 434 F.Supp. 1022, 1027 (E.D.Pa.1977); In Re Joyce Z. Furthermore, it is equally clear that the Commonwealth and the counties have been charged under the Act witjh the responsibility of providing such minimally adequate habilitation to the retarded. The Act envisions a comprehensive cooperative State-county (or multi-county) program for the care, treatment and rehabilitation of persons who are . . . mentally retarded . . The State, through the Department of Welfare, is responsible for the overall supervision and control of the program to assure the availability of and equitable provision for adequate . mental retardation facilities, and the counties, separately or in concert, are assigned responsibilities as to particular programs. Hoolick v. Retreat State Hospital, 24 Pa.Cmwlth. 218, 221-22, 354 A.2d 609, 611 (1976). See also, 50 P.S. § 4201(8). On the basis of this record, we find that both the Commonwealth and the counties have violated their statutory obligation to provide minimally adequate habilitation to the retarded residents at Pennhurst. In particular, the Commonwealth has violated its statutory mandate to supervise and control the program of minimally adequate habilitation to these individuals. E. Federal Statutory Right to Non-Discriminatory Habilitation The question has also been presented whether Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, grants federal statutory rights to the retarded residents at Pennhurst which have been violated. Section 504 provides: No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. There is no" } ]

[ { "docid": "5145397", "title": "", "text": "Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal Constitutional and statutory issues as well as the state law questions raised by this Court in its Memorandum of December 23, 1977. 451 U.S. 1, 29-31, 101 S.Ct. 1531, 1546-47, 67 L.Ed.2d 694. On February 26, 1982, the Third Circuit, pursuant to the Supreme Court’s remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania’s Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania’s retarded citizens the right to adequate habilitation in the least restrictive environment. Although the Commonwealth defendants are once again petitioning for certiorari to the Supreme Court, there is no stay of this Court’s Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living arrangements in order to provide for their adequate habilitation. (Orders of March 17, 1978; June 8, 1979; April 24, 1980; March 2, 1981). The transfer of retarded citizens from confinement at Pennhurst to habilitation in the community proceeded at snail’s pace from 1978 through 1980. For that reason, this Court, on May 27, 1980, held a hearing on a Rule to Show Cause and after that hearing determined, among other things, that the Commonwealth defendants, based on the evidence presented at the hearing and upon their own representation, were capable of placing 100 Pennhurst residents from counties outside the Southeast Region of Pennsylvania in community arrangement during the fiscal year commencing July 1, 1981 and ending June 30,1982. In its Order of March 2, 1981, the Court ordered the Commonwealth defendants to effectuate 100 such transfers on or before June 30, 1982. In early 1978, when this Court entered the injunctive order designed to provide to the retarded residents of Pennhurst their state statutory, federal statutory, and federal constitutional rights, the Court hoped and expected that the defendants would provide these rights to" }, { "docid": "22669251", "title": "", "text": "officials; and various county commissioners, county mental retardation administrators, and other officials of five Pennsylvania counties surrounding Penn-hurst. Respondents’ amended complaint charged that conditions at Pennhurst violated the class members’ rights under the Eighth and Fourteenth Amendments; §504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U. S. C. § 794; the Developmental^ Disabled Assistance and Bill of Rights Act, 89 Stat. 496, 42 U. S. C. §6001 et seqand the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act), Pa. Stat. Ann., Tit. 50, §§4101-4704 (Purdon 1969 and Supp. 1983-1984). Both damages and injunctive relief were sought. In 1977, following a lengthy trial, the District Court rendered its decision. Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295. As noted in our prior opinion, the court’s findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also in adequate for the ‘habilitation’ of the retarded. Indeed, the court found that the physicial, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U. S., at 7 (footnote omitted). The District Court held that these conditions violated each resident’s right to “minimally adequate habilitation” under the Due Process Clause and the MH/MR Act, see 446 F. Supp., at 1314-1318, 1322-1323; “freedom from harm” under the Eighth and Fourteenth Amendments, see id., at 1320-1321; and “nondiscriminatory habilitation” under the Equal Protection Clause and § 504 of the Rehabilitation Act, see id., at 1321-1324. Furthermore, the court found that “due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual’s habilitative needs.” Id., at 1319 (emphasis added). After concluding that the large size of Pennhurst prevented it from providing the necessary habilitation in the least restrictive environment, the court ordered that “immediate steps be taken to remove the retarded residents from Pennhurst.” Id., at 1325. Petitioners were ordered “to provide suitable community living arrangements” for the class members, id., at 1326, and the court appointed a" }, { "docid": "22258718", "title": "", "text": "part: The department shall have power, and its duty shall be: (1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them . Pa.Stat.Ann. tit. 50, § 4201. The court held that this section grants retarded persons an affirmative right to minimally adequate habilitation. 446 F.Supp. at 1322. More- . over, it noted, the County defendants share in this statutory duty to supply adequate treatment. Id. at 1322-23. Section 201 refers to the state’s “duty” to “assure” the “availability . . . of adequate mental health and mental retardation services for all persons who need them. . . ” Pa.Stat.Ann. tit. 50, § 4201(1). That language is broad and determined: the obligation to provide services to the mentally handicapped on the basis of need. Had the Commonwealth intended to offer only confinement without more, it would hardly have spoken in terms of “adequate . . . services.” Id. Our reading of the statutory language is amply supported by the legislative history of the MH/MR Act of 1966. Speaking on behalf of the Act in the Pennsylvania Senate, Senator Pechan elaborated its fundamental habilitative purposes. The object of this legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it. It will make those services available to every citizen in every community which are now available only to a lucky few, in the more progressive communities. It will open more beds in the local general hospitals. It will make available the services of psychiatrists and psychologists, of psychiatric nurses and social workers, of specially trained occupational therapists, of speech and hearing therapists, of activities directors and of child care workers. It will supplement the benefits of therapy with daytime and evening programs of activity which will call back to reality the erring mind, which will re-create and strengthen the ties which bind one human being to another and make us comfortable in each others’ company. It will provide productive activity for those who" }, { "docid": "16556141", "title": "", "text": "an erroneous interpretation of the federal constitution. No petition for certiorari was filed in the Schmidt case, and the Commonwealth does not here urge that Schmidt was the result of a misinterpretation of the MH/MR Act of 1966 compelled by an erroneous view of federal law. . 612 F.2d at 115. . Under Section 201(1) of the MH/MR Act of 1966 the Pennsylvania Department of Public Welfare “shall have power, and its duty shall be: (1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status.” Pa.Stat. Ann. tit. 50, § 4201(1) (Purdon 1969). Pennsyl- ■ vania Counties are obliged. Subject to the provisions of sections 508 and 509(5) it shall be the duty of local authorities in cooperation with the department [of Public Welfare] to insure that the following mental health and mental retardation services are available: (1) Short term inpatient services other than those provided by the State. (2) Outpatient services. (3) Partial hospitalization services. (4) Emergency services twenty-four hours per day which shall be provided by, or available within at least one of the types of services specified heretofore in this paragraph. (5) Consultation and education services to professional personnel and community agencies. (6) Aftercare services for persons released from State and County facilities. (7) Specialized rehabilitative and training services including sheltered workshops. (8) Interim care of mentally retarded persons who have been removed from their homes and who having been accepted, are awaiting admission to a State operated facility. (9) Unified procedures for intake for all county services and a central place providing referral services and information. Pa.Stat.Ann. tit. 50, § 4301(d) (Purdon 1969). Section 508 provides: (a) If local authorities cannot insure the availability of any of the services required by section 301, or if they assert that it would be economically unsound to do so, such authorities may make application to the department to be relieved for the period of one year from the duty to" }, { "docid": "14768244", "title": "", "text": "service unit (“BSU”). 50 Pa.Cons.Stat.Ann. § 4301(d)(9) (Purdon 1969); 55 Pa.Code § 6201.13(a). The Act requires the Pennsylvania General Assembly annually to budget funds for mental retardation services within the state. See 50 Pa.Stat.Ann. §§ 4201, 4202 (Purdon 1969 & Supp.1988). It delegates to the Department of Public Welfare disbursement of these funds, supplemented by federal funds, among Pennsylvania’s sixty-seven counties. Id. at §§ 4201, 4507, 4509. The counties, however, remain free to provide additional funding. See id. at § 4509. The Act also anticipates funding shortfalls, requiring the Department of Public Welfare, in the event of an allocation insufficient to fully fund approved grants, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties’ financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available. Id. at § 4509(5). Under the statutory scheme, the state must provide total funding for approved local residential programs, which give twenty-four hour care to live-in residents. Id. at §§ 4507, 4509. Programs administering approved nonresidential services must receive ninety percent of their funding from the state and ten percent from the county. Id. at § 4509. Since 1983, Philadelphia’s program has run at a deficit; in each year through fiscal year 1987, it covered the deficit with money left over from placement of persons from Pennhurst. App. 636-37. In fiscal year 1988, however, Philadelphia could not find a way to cover the difference. Faced with cutting services, Philadelphia asked for and received supplemental funding from the Commonwealth. The Commonwealth, however, refused Philadelphia’s request to annualize this special allocation. The Commonwealth’s position set the stage for the instant dispute. For fiscal year 1989, the Commonwealth once again allocated less funds than Philadelphia needed. The shortfall was estimated at $6.8 million, approximately 10% of Philadelphia’s budgeted spending for care and treatment of the mentally retarded. The Commonwealth, as promised, refused to supplement the funding. In response, Philadelphia announced" }, { "docid": "15751202", "title": "", "text": "such officials in connection with the injuries suffered by the named plaintiffs.” Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1324 (E.D.Pa.1977) aff’d and modified, 612 F.2d 84 (3d Cir. 1979). SEITZ, Chief Judge, concurring, with whom Judges ALDISERT, ROSENN, and GARTH join. I agree with the majority that the judgment of the district court must be vacated and the case remanded for a new trial because of the exclusion of relevant expert testimony and the use of improper legal standards in the charge to the jury. I also agree with the majority that this case is governed by the due process clause of the fourteenth amendment and not by the eighth amendment. I write separately because of a pervasive disagreement with the majority with regard to the standards that should be employed in charging the jury on remand. I. Pennhurst is not unfamiliar to this court. Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979) (in banc), cert. granted, 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853 (1980), was a class action on behalf of the residents of Pennhurst challenging the practice of institutionalizing the mentally retarded. Plaintiff Nicholas Romeo is a member of that class, and the defendants here are also defendants in Halderman. A majority of this court held in Halderman that federal and state statutory provisions granted the residents of Pennhurst a right to treatment in the least restrictive environment. See 612 F.2d at 104-07; Developmental^ Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976); Mental Health & Mental Retardation Act of 1966, Pa.Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The court remanded for an individualized determination of what type of environment, institutional or otherwise, best suited each class member’s' needs. The majority did not have to reach the constitutional issues presented by the plaintiffs. This suit presents legal issues that take the next step beyond Halderman. The plaintiff alleges that while confined at Pennhurst he was deprived of his rights under the eighth and fourteenth amendments of the Constitution. The defendants are state officials" }, { "docid": "22258727", "title": "", "text": "health and mental retardation program for the prevention of mental disability, and for the diagnosis, care, treatment, rehabilitation and detention of the mentally disabled and shall have power to make appropriations for such purposes. Pa.Stat.Ann. tit. 50, § 4301(a). This section directs that local authorities establish a “mental health and mental retardation program for the . . . . treatment, rehabilitation and detention of the mentally disabled. . . .” Id. Thus, although seetion 4301(d) specifies certain facilities for which the Counties will be principally responsible, the Act as a whole contemplates County participation in all facets of the state’s provision of services. Indeed, in the case of Pennhurst itself, the Counties have joined inextricably in the state’s provision— or lack of provision — of treatment. As we noted in Part III above,. the Counties arrange for admission to Pennhurst through their operation of Base Service Units. Often, the district court found, the County Base Service Units fail to investigate alternatives to institutional placements, thereby consigning the mentally retarded to inadequate living conditions. 446 F.Supp. at 1313. Having thus participated for so long in the institutional practices at Pennhurst, the Counties cannot at this late date escape — by pointing the finger of responsibility elsewhere — the statutory duty to provide adequate habilitation. Accordingly, we hold that the appellees have' a state statutory right to habilitation, that they may sue to enforce that right, and that a federal court has pendent jurisdiction, which was properly exercised in this instance, to enforce that right. Vi: THE RIGHT TO THE LEAST RESTRICTIVE ENVIRONMENT Having concluded that appellees have a right to treatment, we turn to a consideration of the setting in which that treatment must be provided. Plaintiffs contend that the state is obligated to provide habilitation in an environment that infringes least on the personal liberties of the mentally retarded. The trial court agreed, predicating the decision exclusively upon constitutional grounds. The court reasoned that because “[a]ll admissions to state facilities . entail an infringement on fundamental rights arid freedoms . . . [,] due process demands that if a state" }, { "docid": "22258726", "title": "", "text": "giving it a flexible degree of control. So, I am saying today — at least, I, speaking for myself — that we are charging County Governments with this tremendous responsibility. We hope that they will take these words to heart . 1966 P.Legis.J., 3d Spec.Sess. — No. 33, 77 (Sept. 27, 1966). Section 509(5) in no way undercuts the intended partnership of the Counties and the Commonwealth. The Counties contend, however, that while they may have some responsibilities under the Act to provide habilitation to the retarded, those responsibilities are exhaustively specified in section 301(d), and no other duties — such as habilitation at institutions or community living arrangements — can be imposed upon them. We reject this suggestion. It is true that section 301(d) sets forth specific duties for the Counties. Nevertheless, the Counties’ mandate under the Act is much broader. Section 301(a), for example, states, in pertinent part: The local authorities of each county separately or in concert with another county or counties, as the secretary may approve, shall establish a county mental health and mental retardation program for the prevention of mental disability, and for the diagnosis, care, treatment, rehabilitation and detention of the mentally disabled and shall have power to make appropriations for such purposes. Pa.Stat.Ann. tit. 50, § 4301(a). This section directs that local authorities establish a “mental health and mental retardation program for the . . . . treatment, rehabilitation and detention of the mentally disabled. . . .” Id. Thus, although seetion 4301(d) specifies certain facilities for which the Counties will be principally responsible, the Act as a whole contemplates County participation in all facets of the state’s provision of services. Indeed, in the case of Pennhurst itself, the Counties have joined inextricably in the state’s provision— or lack of provision — of treatment. As we noted in Part III above,. the Counties arrange for admission to Pennhurst through their operation of Base Service Units. Often, the district court found, the County Base Service Units fail to investigate alternatives to institutional placements, thereby consigning the mentally retarded to inadequate living conditions. 446 F.Supp." }, { "docid": "5145396", "title": "", "text": "Hearing Master to provide the individual determinations mandated by the Circuit Court for Pennhurst residents being placed into the community, and for other retarded members of the class being recommended for admission to State facilities for the mentally retarded. The United States Supreme Court granted certiorari in this case on June 10, 1980, and on June 30, 1980 entered a limited stay order which, in effect, allowed only “voluntary” transfers of Pennhurst residents to the community pending final disposition of the matter. On July 14, 1980, this Court ordered the Hearing Master to hold a hearing for each Pennhurst resident for whom a community living arrangement had been prepared, for the purpose of determining whether the proposed transfer from Pennhurst to the community was “voluntary.” On December 1, 1980, the Supreme Court declined to disturb this Court’s interpretation and application of its stay order. On April 20, 1981, the United States Supreme Court reversed the Third Circuit’s determination that the Bill of Rights for the Handicapped contained in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal Constitutional and statutory issues as well as the state law questions raised by this Court in its Memorandum of December 23, 1977. 451 U.S. 1, 29-31, 101 S.Ct. 1531, 1546-47, 67 L.Ed.2d 694. On February 26, 1982, the Third Circuit, pursuant to the Supreme Court’s remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania’s Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania’s retarded citizens the right to adequate habilitation in the least restrictive environment. Although the Commonwealth defendants are once again petitioning for certiorari to the Supreme Court, there is no stay of this Court’s Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living arrangements in order to provide for their adequate" }, { "docid": "14768243", "title": "", "text": "state-subsidized habilitation of the mentally retarded is performed in a variety of settings ranging from state institutions to the retarded person’s home. Provision of these services is governed by the Mental Health and Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969 & Supp.1988). The Act divides responsibility for providing and purchasing services for the mentally retarded between the state and county governments. It delegates to the state the duties “[t]o ensure ... the availability and equitable provision of adequate ... mental retardation services for all persons who need them,” to promulgate regulations consistent with the Act, and to assist the counties in fulfilling their duties. 50 Pa.Cons. StatAnn. § 4201. It delegates to the counties diagnosis, evaluation of needs, and development of a plan to address those needs, including a determination to place the mentally retarded person either in the institution, a group home, or with his family. Id. at §§ 4301-4805; 55 Pa.Code §§ 6201.1-14. To be eligible for county-level services, individuals must register with, and be accepted by, a base service unit (“BSU”). 50 Pa.Cons.Stat.Ann. § 4301(d)(9) (Purdon 1969); 55 Pa.Code § 6201.13(a). The Act requires the Pennsylvania General Assembly annually to budget funds for mental retardation services within the state. See 50 Pa.Stat.Ann. §§ 4201, 4202 (Purdon 1969 & Supp.1988). It delegates to the Department of Public Welfare disbursement of these funds, supplemented by federal funds, among Pennsylvania’s sixty-seven counties. Id. at §§ 4201, 4507, 4509. The counties, however, remain free to provide additional funding. See id. at § 4509. The Act also anticipates funding shortfalls, requiring the Department of Public Welfare, in the event of an allocation insufficient to fully fund approved grants, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties’ financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available. Id. at § 4509(5). Under the statutory scheme, the state must provide" }, { "docid": "23464923", "title": "", "text": "retardation. The action whs commenced in May of 1974 by Terri Lee Halderman, a minor resident of Pennhurst. A motion by the United States to intervene as a plaintiff was granted in January, 1975, and the Pennsylvania Association for Retarded Citizens (PARC) successfully moved to intervené thereafter. The Commonwealth defendants are the Department of Public Welfare, the Secretary of the Department, and a number of state officials having responsibility for the habilitation of the mentally retarded in Pennsylvania and for the operation of Pennhurst. Additional defendants, not involved in the contempt proceedings, are five counties of southeastern Pennsylvania which, under Pennsylvania law, share responsibility with the Commonwealth for the habilitation of the mentally retarded. After extensive pretrial discovery and a lengthy trial, the District Court in December 1977 made findings of fact and conclu sions of law holding that the rights of class members secured to them by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969) (MH/MR Act of 1966), by several federal statutes, and by the federal constitution were being violated. When the parties were unable to agree on an order which would remedy the continuing violations of law which the district court found, on March 17, 1978 the Court issued a permanent injunction ordering that Pennhurst eventually be closed and that suitable community living arrangements and necessary support services be provided for its residents. Particularly relevant to the contempt proceedings is the provision in the March 17, 1978 order for the appointment of a Special Master to supervise the planning and implementation of arrangements for placing Pennhurst residents elsewhere, .and for the operation of Pennhurst until such placements were accomplished. Paragraph 8 of the District Court’s March 17, 1978 order provided that [t]he Master shall engage such staff of his or her own as he or she finds necessary, subject to the approval of the Court. The Master and his or her staff shall be compensated by the commonwealth defendants at a rate to be set by the court; the expenses of the mastership to be borne by the" }, { "docid": "753895", "title": "", "text": "intent to impose an affirmative-action obligation on all recipients of federal funds.” Id. at 411, 99 S.Ct. at 2369. Chief Judge Seitz, in his persuasive dissent in the much-traveled case of Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir.1979) (en banc), rev’d 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), opinion on remand, 673 F.2d 647 (3d Cir.1982) (en banc), rev’d — U.S. -, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), echoed a similar rationale. At issue was whether section 504 mandates positive action by the state to create new, less restrictive habilitation facilities. Chief Judge Seitz stated that the structure and intent behind this statute was to provide a financial incentive on the part of states towards ensuring the handicapped equal access to federally funded programs, rather than any sort of legislative mandate for action. “The carefully tailored system of programs and grants in the legislation as a whole belies any congressional intention to impose an absolute duty to provide the least restrictive treatment.” 612 F.2d at 120. See also Kentucky Association for Retarded Citizens v. Conn, 510 F.Supp. 1233, 1243 (W.D.Ky.1980), aff'd 674 F.2d 582 (6th Cir.1982) (Section 504 does not include a legislative mandate for deinstitutionalization). Several courts that have considered the applicability of section 504 in circumstances similar to the present case have agreed no cause of action exists where the gravamen of the plaintiff’s complaint is that section 504 was violated by denying a mentally retarded individual placement in a residential, non-institutional facility. See Manecke v. School Board of Pinellas County, 553 F.Supp. 787, 790 n. 4 (M.D.Fla.1982); Garrity v. Gallen, 522 F.Supp. 171, 213 (D.N.H.1981). The case law and the statutory language is clear that while section 504 prohibits a handicapped individual’s being excluded from, being denied the benefits of, or being discriminated against by a recipient of federal financial assistance, it does not mandate any type of affirmative action by the recipient. I therefore hold that to the extent plaintiff seeks to assert a claim under section 504, the complaint must be dismissed. Moreover, even if a" }, { "docid": "18775536", "title": "", "text": "87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). But it has never been held to apply to actions brought by the United States against a state. See United States v. State of Illinois, 454 F.2d 297, 300 (7th Cir.1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1767, 32 L.Ed.2d 117 (1972). The Academy contends, nonetheless, that the United States’ claim violates the spirit and intendment of the eleventh amendment as interpreted in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This misconstrues both the scope of the amendment and of the Pennhurst decision. The Pennhurst opinion relied on by the Academy stemmed from the effects of an earlier opinion by the Court in the same case, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). In that case, the Court reversed the Third Circuit’s ruling that the conditions at Pennhurst violated, inter alia, the plaintiffs’ rights under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001 et seq. The Court held that that Act did not create any substantive rights and remanded to the court of appeals for a determination as to whether its remedial order could be supported on the basis of the other grounds alleged in the complaint, i.e., the Constitution, the Vocational Rehabilitation and Other Rehabilitation Services Act of 1973, 29 U.S.C. §§ 701-96, and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., tit. 50, §§ 4101-4704. On remand, the Third Circuit held that the Pennsylvania statute supported its prior judgment. It did not reach the remaining issues of federal law and it rejected the appellees’ argument that the eleventh amendment barred a federal court from considering this pendent state law claim. This latter argument was the key-issue raised in Pennhurst’s subsequent appeal to the Supreme Court. The Court held for Pennhurst in a two-step opinion. First, it held" }, { "docid": "22258722", "title": "", "text": "decision in Eubanks v. Clarke, 434 F.Supp. 1022 (E.D.Pa.1977). There, relying in part on section 201 of the MH/MR Act of 1966, . Chief Judge Lord held that the plaintiff, an involuntarily committed schizophrenic, had a “state law right to treatment or release.” 434 F.Supp. at 1027. Similarly, in Hoolick v. Retreat State Hospital, 24 Pa.Cmwlth. 218, 354 A.2d 609 (1976), aff’d 476 Pa. 317, 382 A.2d 739 (1978), a Pennsylvania court described the MH/MR Act of 1966 as envisioning a “comprehensive program for the care, treatment and rehabilitation of mentally disabled and mentally retarded persons . . . ” 24 Pa.Cmwlth. at 220, 354 A.2d at 611. Despite the apparent meaning of section 201, and the plain intentions of the state legislature, several of the appellants object to the trial court’s reliance on the MH/MR Act of 1966. The Commonwealth and the Counties contend that section 509(5) of the Act belies any duty on their part to provide treatment. Section 509(5) empowers the Department of Public Welfare to distribute grant monies to the Counties where sufficient funds have not been appropriated by the state. In the event that sufficient funds to pay the full amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties’ financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available. Pa.Stat.Ann. tit. 50, § 4509(5). The Commonwealth contends that since services to the retarded can be reduced in light of insufficient funding, there cannot be “an unconditional right to those services.” Brief for Commonwealth Appellants at 31. The Counties, on the other hand, rely on this section in making their argument that any duty to provide treatment rests solely on the state, and not them. Brief for Suburban County Appellants at 24-25. We reject these contentions." }, { "docid": "22258786", "title": "", "text": "of its budget to the treatment of the mentally ill,” as reasons to eschew creating new suspect classification for protection of mentally handicapped). . While not expressly covering persons who are mentally retarded but not mentally ill, Pennsylvania’s Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, §§ 7101-7503 (Purdon) (Supp.1979), promulgated in 1976, also reflects the state’s recognition of a need for treatment. Section 102 of the Act provides, in pertinent part: § 7102. Statement of policy It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be effected. . Treatment on a voluntary basis shall be preferred to involuntary treatment; and in every case, the least restrictions consistent with adequate treatment shall be employed. Pa.Stat.Ann. tit. 50, § 7102. . Section 301(d) of the Act provides: Subject to the provisions of sections 508 and 509(5) it shall be the duty of local authorities in cooperation with the department to insure that the following mental health and mental retardation services are available: (1) Short term inpatient services other than those provided by the State. (2) Outpatient services. (3) Partial hospitalization services. (4) Emergency services twenty-four hours per day which shall be provided by, or available within at least one of the types of services specified heretofore in this paragraph. (5) Consultation and education services to professional personnel and community agencies. (6) Aftercare services for persons released from State and County facilities. (7) Specialized rehabilitative and training services including sheltered workshops. (8) Interim care of mentally retarded persons who have been removed from their homes and who having been accepted, are awaiting admission to a State operated facility. (9) Unified procedures for intake for all county services and a central place providing referral services, and information. (Footnote omitted). Pa.Stat.Ann. tit. 50, § 4301(d). . See note 38, infra. . As noted above, supra, the trial court did not reach the question of liability under § 6001 and while it found liability under §" }, { "docid": "22258717", "title": "", "text": "and Bill of Rights Act sought to change the traditional spending habits of the states. It is most unlikely that Congress intended those changes to be enforceable only in state courts. We would find it quite anomalous in the absence of a clear congressional expression to hold that a federal statute created a cause of action arising under federal law, but enforceable only in the state courts and not under 28 U.S.C. § 1331 (1976). Accordingly, we hold that appellees have a federal statutory right to habilitation, that they may sue to enforce that right, and that such suit is properly lodged in federal court. B. State Law As an alternative ground for a right to adequate habilitation, appellees point to sections 101-704 of Pennsylvania’s Mental Health and Mental Retardation Act of 1966 [hereinafter MH/MR Act of 1966], Pa.Stat. Ann. tit. 50, §§ 4101^1704 (Purdon 1969). The trial court accepted this contention, relying principally upon section 201 of the Act. That section, which establishes the responsibilities of the Department of Public Welfare, provides in pertinent part: The department shall have power, and its duty shall be: (1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them . Pa.Stat.Ann. tit. 50, § 4201. The court held that this section grants retarded persons an affirmative right to minimally adequate habilitation. 446 F.Supp. at 1322. More- . over, it noted, the County defendants share in this statutory duty to supply adequate treatment. Id. at 1322-23. Section 201 refers to the state’s “duty” to “assure” the “availability . . . of adequate mental health and mental retardation services for all persons who need them. . . ” Pa.Stat.Ann. tit. 50, § 4201(1). That language is broad and determined: the obligation to provide services to the mentally handicapped on the basis of need. Had the Commonwealth intended to offer only confinement without more, it would hardly have spoken in terms of “adequate . . . services.” Id. Our reading of the statutory language is amply supported by the legislative history" }, { "docid": "16556144", "title": "", "text": "in the amount of ninety per cent of the excess of all such approved expenditures for such programs over the amount paid for the same purpose from any public or private source directly to participating counties, facilities or individuals. (2) To prescribe the time at which the counties shall submit to the department annual plans and annual estimates of expenditures, and revisions thereof, to carry out mental health and mental retardation programs. Such plans and estimates shall contain such information as the secretary by regulation shall prescribe. (3) Upon approval of an annual plan and the estimated expenditures for a mental health and mental retardation program, to compute an annual grant in accordance with the formula established in clause (1) of this section. (5) In the event that sufficient funds to pay the full- amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties’ financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available. Pa.Stat.Ann. tit. 50, § 4509 (Purdon 1969). The district court was quite aware of these provisions, and the allocation of responsibilities among' the respective defendants set forth in the order is consistent with them. . A general objection to prospective relief on Eleventh Amendment grounds was made when the case was first before us. It was rejected on the authority of Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974). 612 F.2d at 109. As noted in Part I above, that holding is not affected by the Supreme Court’s remand. . Id. . E.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824); Board of Liquidation v. McComb, 92 U.S. 531, 23" }, { "docid": "8359299", "title": "", "text": "to support her claim that she has been the victim of prohibited discrimination. In Halderman v. Pennhurst State School & Hospital, 446 F.Supp. 1295, 1323-24 (E.D.Pa.1977), aff’d on other grounds, 612 F.2d 84 (3d Cir.1979) (en banc), rev’d, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); on remand 673 F.2d 647 (3d Cir.1982) (en banc), rev’d, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (The relevant portion of the original district opinion has not been addressed by the appellate decisions), Judge Broderick of this court held that the segregation of the handicapped in an isolated institution such as Pennhurst without minimally adequate habilitation constituted a violation of the Rehabilitation Act. He stated: “[w]e hold ... that under Section 504 unnecessarily separate and minimally inadequate services are discriminatory and unlawful.” Id. at 1323-24. Pennhurst, of course, involved a broad challenge to the very existence of Pennhurst State School based on a variety of different legal theories. In their Rehabilitation Act claims, plaintiffs therein ar gued that the segregation of mentally retarded persons into an institution like Pennhurst was actionable discrimination under the Act. In determining that defendants had violated the Rehabilitation Act, the Pennhurst court concluded that in enacting the Act, Congress had effectively codified the constitutional right to equal protection. Id. at 1323. Because the court had already determined that the segregation of mentally retarded persons at Pennhurst violated the equal protection clause, it concluded that the Rehabilitation Act had also been violated. Id. Judge Broderick’s conclusion was based on Pennsylvania Ass’n for Retarded Children v. Pennsylvania, 343 F.Supp. 279 (E.D.Pa.1972). He held, in effect, that the equal protection clause prohibited the segregation of the mentally retarded in an isolated institution where habilitation does not measure up to minimally adequate standards. Id. The court did not, however, detail this theory and did not state whether the basis of its decision was a finding that the mentally retarded were a suspect class or whether education was a fundamental right. There is also no discussion of the equal protection analysis used to evaluate these claims. Although other aspects" }, { "docid": "23464922", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge, with whom ALDISERT, WEIS, HIGGINBOTHAM, and SLOVITER, Circuit Judges join: The Honorable Helen O’Bannon, Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania, and that Department, appeal from an August 25, 1981, order of the District Court, 533 F.Supp. 631, holding them in civil contempt, after a hearing, for failure to comply with the terms of the court’s orders of June 4, 1981, and July 14, 1981. Those orders directed that the Commonwealth of Pennsylvania pay into the Registry of the District Court estimated costs for the operation of the Office of Special Master created under the terms of prior orders in this protracted lawsuit. The plaintiffs have moved to dismiss the appeal from the contempt order for want of an appealable order. We conclude that we have appellate jurisdiction, and we affirm. I This civil contempt proceeding arises out of a class action granting injunctive relief against the fact or conditions of confinement in Pennhurst State School and Hospital (Pennhurst) of persons suffering mental retardation. The action whs commenced in May of 1974 by Terri Lee Halderman, a minor resident of Pennhurst. A motion by the United States to intervene as a plaintiff was granted in January, 1975, and the Pennsylvania Association for Retarded Citizens (PARC) successfully moved to intervené thereafter. The Commonwealth defendants are the Department of Public Welfare, the Secretary of the Department, and a number of state officials having responsibility for the habilitation of the mentally retarded in Pennsylvania and for the operation of Pennhurst. Additional defendants, not involved in the contempt proceedings, are five counties of southeastern Pennsylvania which, under Pennsylvania law, share responsibility with the Commonwealth for the habilitation of the mentally retarded. After extensive pretrial discovery and a lengthy trial, the District Court in December 1977 made findings of fact and conclu sions of law holding that the rights of class members secured to them by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969) (MH/MR Act of 1966), by several federal statutes, and by" }, { "docid": "16556143", "title": "", "text": "insure their availability. Such application shall specify: (i) the service or services involved and (ii) facts upon which it seeks relief. (b) If the department after consideration of the application and such independent investigation as it shall deem appropriate determines that the application is justified, it may approve the same, in which event, the department may insure the availability of the service or services specified in the application, for the year specified in the application. (c) When the department provides said service or services under this section, the liability shall be apportioned in accordance with the appropriate formula determined in accordance with section 509(1). (d) Local authorities may make successive application hereunder. Pa.Stat.Ann. tit. 50, § 4508 (Purdon 1969). Section 509 provides, inter alia: The department [of Public Welfare], subject to the provisions of section 503, shall have the power, and its duty shall be: (1) From State and Federal funds, to make annual grants to counties to defray part of the cost of county programs authorized by this act and approved by the department, in the amount of ninety per cent of the excess of all such approved expenditures for such programs over the amount paid for the same purpose from any public or private source directly to participating counties, facilities or individuals. (2) To prescribe the time at which the counties shall submit to the department annual plans and annual estimates of expenditures, and revisions thereof, to carry out mental health and mental retardation programs. Such plans and estimates shall contain such information as the secretary by regulation shall prescribe. (3) Upon approval of an annual plan and the estimated expenditures for a mental health and mental retardation program, to compute an annual grant in accordance with the formula established in clause (1) of this section. (5) In the event that sufficient funds to pay the full- amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided" } ]

[ { "docid": "10058388", "title": "", "text": "EASTERBROOK, Circuit Judge. The financial troubles of Continental Illinois National Bank have produced a number of suits against the Bank and its officers. Three of Continental’s insurers have sought declaratory judgments concerning the scope of their coverage. These declaratory judgment actions are before a fourth judge, the first three having recused themselves. Judge Shadur has declined to follow suit. Two of the three insurers have asked us to remove him from the case on the ground that his “impartiality might reasonably be questioned”, 28 U.S.C. § 455(a). Mandamus is the insurers’ proper remedy, SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977); Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir.1985); New York City Housing Development Corp. v. Hart, 796 F.2d 976 (7th Cir.1986); indeed it is their only remedy, United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.1985). Contra, In re City of Detroit, 828 F.2d 1160, 1165-67 (6th Cir.1987) (review available only after entry of final judgment). Judge Shadur’s son Robert is a lawyer. In February 1987 Continental hired Robert Shadur to represent it in a $5 million revolving credit transaction with the beneficial interest in a voting trust as security. Continental chose Robert Shadur at the debtor’s request because he had recently represented Chemical Bank, a longstanding client, in a similar transaction with the same collateral. The debtor, which was to pay Continental’s legal costs, wanted to avoid the time and expense of educating Continental’s regular counsel about an unusual transaction. Robert Shadur advised his father of the retention. Judge Shadur immediately informed counsel and asked for their views: Without in any way abdicating my responsibility [to decide whether my “impartiality might reasonably be questioned”], I believe it would be useful to obtain the observations of counsel to make certain that I will have taken into account all possible considerations bearing on that standard. At the same time, under no circumstances do I intend to create a situation in which anyone feels constrained from commenting because I may, after full consideration, conclude that the cases should properly be kept on my calendar (with counsel therefore" } ]

[ { "docid": "13325326", "title": "", "text": "Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982). And, accordingly, this recusal motion will be reviewed for abuse of discretion. Weinberger v. Equifax, Inc., 557 F.2d 456, 464 (5th Cir.1977). Courts should take special care in reviewing recusal claims so as to prevent parties from “abus[ing] § 455 for a dilatory and litigious purpose based on little or no substantiated basis.” Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1409 n. 8 (5th Cir.1994). Chief Justice Rehnquist has noted, when considering a request for his own recusal, that “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972). A As noted, the Plaintiffs identify three statutory bases for their recusal motion: 28 U.S.C. § 455(a), § 455(b)(4), and § 455(b)(5)(iii). Under 28 U.S.C. § 455(a), “Any ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Courts have interpreted this statute to require recusal if a reasonable person, knowing all of the facts, would harbor doubts concerning the judge’s impartiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). In conducting this review, we must ask how these facts would appear to a “well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.” U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir.1995). Moreover, courts should be cautious and discriminating in reviewing recusal motions. As the Seventh Circuit has noted: A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary. In re Mason, 916 F.2d 384, 385-86 (7th Cir.1990), cited with approval in Jordan, 49 F.3d at 156. In examining this question, we first note that there is" }, { "docid": "12817715", "title": "", "text": "certainly, the sole person who knows whether Judge Conlon may have expressed an opinion on the merits of the defendant’s case is Judge Conlon herself. Had Ruzzano raised this issue in the district court, we would now have the benefit of Judge Conlon’s response. 1. Ruzzano’s § í55(a) Claim. 28 U.S.C. § 455(a) provides that a judge must disqualify herself “in any proceeding in which h[er] impartiality might reasonably be questioned.” In this circuit, appellate review of a judge’s failure to disqualify herself under § 455(a) may only be obtained by petitioning the appellate court for a writ of mandamus prior to trial. See United States v. Horton, 98 F.3d 313, 316-17 (7th Cir.1996); United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985). Our cases have reasoned that “[i]t is a fundamental principle of appellate review that unless an error affects the substantial rights of the appellant, it is not a basis for reversal.... [I]f a judge proceeds in a case when there is (only) an appearance of impropriety in his doing so, the injury is to the judicial system as a whole and not to the substantial rights of the parties. The parties receive a fair trial, even though a reasonable member of the public might be in doubt as to its fairness, because of misleading appearances.” Once the proceedings in the district court are complete, the harm sought to be avoided by the requirement of recusal for appearance of impropriety has been done — -the public image of the judiciary has already been damaged. United States v. Troxell, 887 F.2d 830, 833 (7th Cir.1989) (quoting Balistrieri, 779 F.2d at 1204-05; other citations omitted). While we recognize that this is a minority position, see United States v. Boyd, 208 F.3d 638, 650 (7th Cir.2000) (Ripple, J. dissenting) (arguing that this circuit’s requirement of mandamus is in “considerable tension” with the Supreme Court’s decisions in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), and Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)), cert. granted in" }, { "docid": "18676378", "title": "", "text": "be questioned.” Because the goal of Section 455(a) “is to exact the appearance of impartiality,” recusal may be mandated even though no actual partiality exists. Hall v. Small Business Admin., 695 F.2d 175, 178 (5th Cir.1983). The standard for recusal is an objective one, that if a “reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). In the present case there is no allegation that, prior to his rulings in this ease, Judge Roberts had sought employment with the Sheinfeld firm, or that he knew that the firm was actively considering him. The close coupling of Judge Roberts’s rulings with the employment offer and his acceptance of it, however, does create the appearance that he may have been pursuing employment with Sheinfeld while he was presiding over the case. As the Seventh Circuit noted in Pepsico, Inc. v. McMillen, 764 F.2d 458, 461 (7th Cir.1985): The appearance of equal justice requires that the judge not be exploring the prospects of employment with one lawyer or all lawyers appearing in a case before him. The dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary. Id. at 461. Continental contends that a judge cannot ' be expected to stand recused in a case when he is unaware that counsel for one of the parties appearing before him is considering him for employment. The Supreme Court, in Liljeberg v. Health Services Corp., responded to a similar contention: Contrary to petitioner’s contentions, this reading of the statute does not call upon judges to perform the impossible — to disqualify themselves based on facts they do not know. If, as petitioner argues, § 455(a) should only be applied prospectively, then requiring disqualification based on" }, { "docid": "21308805", "title": "", "text": "by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. 28 U.S.C. § 455(a) & (b) (emphasis added). The statute defines “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as a director, adviser, or other active participant in the affairs of a party,” with exceptions not relevant here. 28 U.S.C. § 455(d)(4). Because those safeguards (§ 144’s affidavit and certification-of-counsel requirements) are lacking, § 455 does not require the judge to “accept as true the allegations made by the party seeking recusal.” In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir.1997). Rather, the district court may make the necessary factual findings and decide whether the facts warrant disqualification. Id. When considering a § 455 recusal request, “the judge is free to make credibility determinations, assign to the evidence what he believes to be its proper weight, and to contradict the evidence with facts drawn from his personal knowledge.” United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir.1985). Section 455 is designed “‘to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.’ ” Union Planters Bank v. L&J Dev. Co., Inc., 115 F.3d 378, 383 (6th Cir.1997) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). Under § 455, the ultimate question is whether “a reasonable, objective person, knowing all of the circumstances, would have questioned the judge’s impartiality.” United States v. Hartsel, 199 F.3d 812, 820 (6th Cir.1999). Because the standard is objective, the judge need not recuse himself based on the subjective view of a party. United States v. Sammons, 918 F.2d 592, 599 (6th Cir.1990). When the objective appearance-of-partiality standard presents a close question, “ ‘the judge must recuse himself.’ ” Union Planters Bank, 115 F.3d at 383 (quoting United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993)). Nonetheless, as the late Chief Justice Rehnquist noted, “a federal judge has a duty" }, { "docid": "19896630", "title": "", "text": "court’s denial of the Government’s motion for recusal. Section 455(a) of the Judicial Code provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has explained that ‘“[t]he goal of section 455(a) is to avoid even the appearance of partiality.’ ” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (quoting Hall v. Small Bus. Admin., 695 F.2d 175, 179 (5th Cir.1983)). Accordingly, we have required recusal “whenever there is ‘a reasonable basis’ for a finding of an ‘appearance of partiality under the facts and circumstances’ of the case.” Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (quoting SCA Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir.1977)). Recusal is required when a “reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir.1990); Nat’l Union Fire Ins. Co., 839 F.2d at 1229. Of course, needless recusals exact a significant toll; judges therefore should exercise care in determining whether recusal is necessary, especially when proceedings already are underway. “[A] change of umpire mid-contest may require a great deal of work to be redone ... and facilitate judge-shopping.” Nat’l Union Fire Ins. Co., 839 F.2d at 1229 (citation omitted). B. Mr. Salahuddin submits that the Government’s petition is untimely. He suggests that this court requires litigants to petition for mandamus “immediately after a judge grants or denies a motion for recusal.” Salahuddin Br. at 8 (citing United States v. Horton, 98 F.3d 313 (7th Cir. 1996), and United States v. Balistrieri, 779 F.2d 1191 (7th Cir.1985)). Here, the district court denied the Government’s motion for recusal on January 8, 2009, and the Government did not file this petition until May 12, 2009, four months after the motion was denied and one month after the motion for reconsideration was denied. We cannot accept this submission. The time during which the Government" }, { "docid": "21370055", "title": "", "text": "a reasonable observer to believe he was biased against Democratic legislators generally, and Black in particular.” Id. at 17. A. A court must evaluate a recusal motion under section 455(a) on an objective basis. Microsoft Corp. v. United States, 530 U.S. 1301, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000) (Rehnquist, J.); Cheney, 541 U.S. at 914, 124 S.Ct. 1391; Liteky, 510 U.S. at 548, 114 S.Ct. 1147; Liljeberg v. Health Servs. Acq. Corp., 486 U.S. 847, 858-59, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The objective analysis does not focus on the reality of a judge’s actual state of mind, purity of heart, incorruptibility, or impartiality. See Liljeberg, 486 U.S. at 858-60, 108 S.Ct. 2194. Rather, the focus is on perception (i.e., appearance): whether sufficient factual grounds exist to cause an objective observer reasonably to question the judge’s impartiality. See, e.g., Liteky, 510 U.S. at 548-51, 114 S.Ct. 1147. In DeTemple, the Fourth Circuit described a “nuanced approach” to determining when recusal is required under section 455(a)’s objective standard and examined four factors. DeTemple, 162 F.3d at 287-88. First, the court must view the facts and circumstances from the position of a reasonable observer outside the judicial system. See id. “Judges, accustomed to the process of dispassionate decision-making and keenly aware of their Constitutional and ethical obligations to decide matters solely on the merits, may regard asserted conflicts to be more innocuous than an outsider would.” Id. However, the reasonable outside observer is not “unduly suspicious or concerned about a trivial risk of bias.” Id. Second, when Congress enacted section 455(a) and adopted an objective standard, Congress abolished the obligation of judges to resolve close questions of disqualification in favor of a judge’s “duty to sit.” Id. at 286-87. Nonetheless, section 455(a) does not require recusal on the basis of suspicion or “unsupported, irrational, or highly tenuous speculation.” Id. at 287 (quotation omitted); see In re United States, 666 F.2d 690, 695 n. * (1st Cir.1981) (the standard under section 455(a) is not the same standard that Caesar used in dismissing his wife Pompeia after merely suspecting her of having" }, { "docid": "23602000", "title": "", "text": "explaining that, “The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists.” 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (internal quotation marks omitted). We have restated § 455(a) and ask “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178 (9th Cir.2005) (internal quotation marks and citation omitted); cf. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) (articulating a similar standard). “Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir.1990). The “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful observer.” Id. at 386. The standard “must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.” Cooley, 1 F.3d at 993. Disqualification under § 455(a) is necessarily fact-driven and may turn on subtleties in the particular case. Consequently, “the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue.” United States v. Bremers, 195 F.3d 221, 226 (5th Cir.1999); see also Clemens, 428 F.3d at 1178. In general, the conscientious judge should also bear in mind that § 455(a) is limited by the “extrajudicial source” factor which generally re quires as the basis for recusal something other than rulings, opinions formed or statements made by the judge during the course of trial. Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)." }, { "docid": "3227897", "title": "", "text": "are guided by the situations outlined in § 455(b), because “affiliations that pose risks similar to those identified in § 455(b) may call for disqualification under § 455(a).” National Union Fire Ins., 839 F.2d at 1229. See also Wright, et al., 13A Federal Practice and Procedure: Jurisdiction 2d § 3549, at 613-14 (“Because of [the] general provision of § 455(a), an overly-nice reading is not required of the specific instances of disqualification spelled out in § 455(b).”). Even if analogies to the § 455(b) categories do not exhaust the possibilities for a § 455(a) recu-sal, the analogous situations must be evaluated with great care by judges. The standard in any case for a § 455(a) recusal is whether the judge’s impartiality could be questioned by a reasonable, well-informed observer. See Hook, 89 F.3d at 354. In Hook, we explained that § 455(a) “asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. This is an objective inquiry.” Id. (citations omitted). An objective standard creates problems in implementation. Judges must imagine how a reasonable, well-informed observer of the judicial system would react.... [D]rawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard under § 455(a) into a demand for proof of actual impropriety. So although the court tries to make an external reference to the reasonable person, it is essential to hold in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be. In re Mason, 916 F.2d 384, 386 (7th Cir.1990). See also Liteky, 510 U.S. at 548, 114 S.Ct. 1147 (“[W]hat matters [under § 455(a) ] is not the reality of bias or prejudice but its appearance.”); Pepsico v. McMillen, 764 F.2d 458 (7th Cir.1985) (ordering recusal under § 455(a)); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977) (same); In re School Asbestos Litigation, 977 F.2d 764 (3d Cir.1992) (same). The question here is whether the Hoover case in" }, { "docid": "21308806", "title": "", "text": "his personal knowledge.” United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir.1985). Section 455 is designed “‘to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.’ ” Union Planters Bank v. L&J Dev. Co., Inc., 115 F.3d 378, 383 (6th Cir.1997) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). Under § 455, the ultimate question is whether “a reasonable, objective person, knowing all of the circumstances, would have questioned the judge’s impartiality.” United States v. Hartsel, 199 F.3d 812, 820 (6th Cir.1999). Because the standard is objective, the judge need not recuse himself based on the subjective view of a party. United States v. Sammons, 918 F.2d 592, 599 (6th Cir.1990). When the objective appearance-of-partiality standard presents a close question, “ ‘the judge must recuse himself.’ ” Union Planters Bank, 115 F.3d at 383 (quoting United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993)). Nonetheless, as the late Chief Justice Rehnquist noted, “a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (emphasis omitted). Scott’s first ground for recusal is that the “Judge had, through his wife, an ongoing financial interest, within the meaning of 28 U.S.C. §§ 144, 455 and the case law thereunder, in this case resolving favorably to defendant____” We consider Scott’s first ground as a claim under § 455(b)(4), which requires a judge to re-cuse himself when “his spouse ... has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” The judge’s wife is employed by the law firm Miller Canfield. While the judge’s wife was an attorney at Miller Canfield’s Kalamazoo office, attorneys in that firm’s Ann Arbor office represented UBS Financial Services, Inc. (“UBS”) in connection with UBS’s underwriting of $165 million in bonds issued by Metro" }, { "docid": "1235446", "title": "", "text": "at 1501; Hinman, 831 F.2d at 939. Id. As noted by the Fifth Circuit in the context of its review of a district court’s decision: Courts have interpreted this statute to require recusal if a reasonable person, knowing all of the facts, would harbor doubts concerning the judge’s impartiality. Liljeberg v. Health Serv. Acquisi tion Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). In conducting this review, we must ask how these facts would appear to a “well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.” U.S. v. Jordan, 49 F.3d 152, 156 (5th Cir.1995). Moreover, courts should be cautious and discriminating in reviewing recusal motions. As the Seventh Circuit has noted: A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary. In re Mason, 916 F.2d 384, 385-86 (7th Cir.1990), cited with approval in Jordan, 49 F.3d at 156. Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir.2004). Analysis of the Undersigned’s Duty to Recuse Pursuant to Section 455(a) OLD argues that because every judge, clerk and staff member of the Eastern District of Louisiana was displaced and would be putative class members in the levee breach litigation, a reasonable factual basis exists to question the Court’s impartiality. OLD maintains that because of the presence of numerous “limited fund” defendants, combined with the amount of damages at issue, the circumstances present the substantial likelihood that one or more limited fund classes will be certified pursuant to Fed.R.Civ.P. 23(b)(1)(B) . As such, OLD contends that there exists a strong probability that “their wishes notwithstanding, neither Judge Duval, nor his staff, nor his family would be able to ‘opt out’ of the class(es) over which they preside.” (Motion for Disqualification at 3). WGI and OLD rely substantially on Nichols v. Alley, 71 F.3d 347 (10th Cir.1995) and In re Nettles, 394 F.3d 1001 (7th Cir.2005) to support" }, { "docid": "23601999", "title": "", "text": "sua sponte from a matter. Recusal in such situations is left to the discretion of the threatened judge, who is in the best position to evaluate the advisability of recusal; we generally do not review a judge’s decision to recuse himself. The question before us, however, is different. Here we must decide when a judge must recuse himself sua sponte in response to threats even if he- believes himself to be unbiased and would prefer to continue his work on the case. Here, Holland contends that under 28 U.S.C. § 455, the district judge should have recused himself sua sponte after receiving his threatening phone calls. Section 455(a) of Title 28 reads: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” In 1974 Congress amended the section to replace the subjective test of the previous version of the section with an objective test based on public perception. The Supreme Court discussed this change in Liljeberg v. Health Servs. Acquisition Corp., explaining that, “The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists.” 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (internal quotation marks omitted). We have restated § 455(a) and ask “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178 (9th Cir.2005) (internal quotation marks and citation omitted); cf. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) (articulating a similar standard). “Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir.1990). The “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather is" }, { "docid": "13580274", "title": "", "text": "However, the court also emphasizes that “a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise.” Pope v. Federal Express Corp., 974 F.2d 982, 985 (8th Cir.1992). Furthermore, “[i]t is well settled that a judge has ‘an affirmative duty ... not to disqualify himself unnecessarily.’” Securities & Exchange Comm. v. Grossman, 887 F.Supp. 649, 658 (S.D.N.Y.1995) (citations omitted); see also, McCann v. Communications Design Corp., 775 F.Supp. 1506, 1508-1509 (D.Conn.1991) (“[I]t would be injurious to our entire system of justice to reward a party who has made serious and wholly unsupported allegations of bias by giving that party precisely what he wants ..., [therefore, a] ... judge has an obligation to prevent ‘judge shopping’ by refusing to recuse himself.”) According to the Eleventh Circuit, disqualification is necessary under the new version of § 455(a) when “an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990) (citations omitted). Under this standard, “even the appearance of impropriety” requires a judge to recuse under section 455(a). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988). Section 455(b), on the other hand, provides certain situations where disqualification is mandatory because “conflicts of interest are readily apparent.” United States v. Alabama, 828 F.2d 1532, 1541 (11th Cir.1987). According to the Eleventh Circuit, “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.” Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988) (citing United States v. Murphy, 768 F.2d 1518, 1540 (11th Cir.1985)). Mr. Murray contends that the undersigned judge should disqualify himself under § 455(a) and/or § 455(b) on several different bases. Mr. Murray first argues that the undersigned judge must disqualify himself under § 455(b)(1) because he has personal knowledge of material disputed evidentiary facts, namely whether he believes" }, { "docid": "22807996", "title": "", "text": "defendant waives his right to appeal the denial); United States v. Gipson, 835 F.2d 1323, 1324-25 (10th Cir.1988) (holding the same); see also United States v. Troxell, 887 F.2d 830, 833 (7th Cir.1989) (holding that the defendant waived her right to appeal the denial of her § 455(a) motion because the “denial of a motion for recusal based on the appearance of impropriety can be challenged only with a writ of mandamus”). But see United States v. Brinkworth, 68 F.3d 633, 637-38 (2d Cir.1995) (holding that a defendant does not waive his right to appeal the denial); United States v. Chantal, 902 F.2d 1018, 1020-21 (1st Cir.1990) (holding the same). For the following reasons, we agree with the Fifth and Tenth Circuits and hold that a defendant waives his right to appeal the denial of a § 455(a) motion by entering an unconditional guilty plea. Section 455 creates two primary reasons for recusal. See 28 U.S.C. § 455(a)-(b). A judge should recuse himself under § 455(a) when there is an appearance of impropriety. See id. § 455(a). Section 455(a) provides, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Thus, the standard of review for a § 455(a) motion “is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality,” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988), and any doubts must be resolved in favor of recusal, United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989). On the contrary, a judge should recuse himself under § 455(b) when any of the specific circumstances set forth in that subsection exist, which show the fact of partiality. 28 U.S.C. § 455(b)(1)-(5). For example, a" }, { "docid": "22432272", "title": "", "text": "simply: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. Notably, under § 455(a), recusal is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself whenever an objective, informed observer could reasonably question the judge’s impartiality, regardless of whether he is actually partial or biased. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Section 455(a) complements § 455(b), which addresses the problem of actual bias by mandating recusal in certain specific circumstances where partiality is presumed. See 28 U.S.C. § 455(b) (requiring recusal when, inter alia, a judge has “a personal bias or prejudice concerning a party”). Section 455 was enacted in its current form in 1974, and constituted a substantial revision to the then-existing standard for recusal of federal judges. See Liteky v. United States, 510 U.S. 540, 546, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). While the pre-1974 law required a judge to recuse himself only when it was “improper, in his opinion, for him to sit,” 28 U.S.C. § 455 (1970), thus establishing a subjective standard, § 455(a) adopts the objective standard of a reasonable observer. See Li-teky, 510 U.S. at 548, 114 S.Ct. 1147. As a result, the judge’s own subjective perception of impropriety is not necessary to invoke the statute. See id. We have stated the standard for recusal under § 455(a) as follows: [A] court of appeals must ask the following question: Would a reasonable person, knowing all the facts, conclude that the trial judge’s impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal? Diamondstone v. Macaluso, 148 F.3d 113, 120-21 (2d Cir.1998) (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992)). The standard is “designed to promote public confidence in the impartiality of the judicial process.” SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861" }, { "docid": "4198743", "title": "", "text": "personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. 28 U.S.C. § 455. The district court judge refused to disqualify himself; Hook has petitioned this court to issue a writ of mandamus to order the judge disqualified. Our review of the petition is de novo. Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir.1989) (citing Balistrieri, 779 F.2d at 1201). We will consider each applicable provision of section 455 in turn. A. Disqualification under 28 U.S.C. § 455(a) 28 U.S.C. § 455(a) requires a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” We have stated: Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. This is an objective inquiry. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988); New York City Housing Develop. Co. v. Hart, 796 F.2d 976 (7th Cir.1986); Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir.1985). An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person.... Trivial risks are endemic, and if they were enough to require disqualification we would have a system of preempto-ry strikes and judge-shopping, which itself would imperil the perceived ability of the judicial system to decide cases without regard to persons. A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary. In re Mason, 916 F.2d" }, { "docid": "3227896", "title": "", "text": "was not the same proceeding as Hatcher’s present ease, we conclude that Judge Koeoras was not required to recuse himself under § 455(b)(5)(h). IV That leaves the remaining theory for recusal, which is under the more open-ended standard of § 455(a). Unlike recusal under § 455(b) or the somewhat similar 28 U.S.C. § 144, the denial of a motion for recusal under § 455(a) may be challenged only by asking for a writ of mandamus prior to trial. United States v. Horton, 98 F.3d 313, 316-17 (7th Cir.1996); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir.1989); United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985). Our review is de novo, Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir.1996) (citing Taylor, 888 F.2d at 1201), cert. denied, — U.S. —, 117 S.Ct. 718, 136 L.Ed.2d 637 (1997), though mandamus is an extraordinary remedy we do not grant lightly- Section 455, as we have already noted, requires a judge to disqualify herself if her “impartiality might reasonably be questioned.” In applying this standard, we are guided by the situations outlined in § 455(b), because “affiliations that pose risks similar to those identified in § 455(b) may call for disqualification under § 455(a).” National Union Fire Ins., 839 F.2d at 1229. See also Wright, et al., 13A Federal Practice and Procedure: Jurisdiction 2d § 3549, at 613-14 (“Because of [the] general provision of § 455(a), an overly-nice reading is not required of the specific instances of disqualification spelled out in § 455(b).”). Even if analogies to the § 455(b) categories do not exhaust the possibilities for a § 455(a) recu-sal, the analogous situations must be evaluated with great care by judges. The standard in any case for a § 455(a) recusal is whether the judge’s impartiality could be questioned by a reasonable, well-informed observer. See Hook, 89 F.3d at 354. In Hook, we explained that § 455(a) “asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. This is an objective inquiry.” Id. (citations omitted). An objective" }, { "docid": "282344", "title": "", "text": "is in mid-stream, and an appeal from the final judgment would give HDC an opportunity to raise all objections to intermediate orders. Yet we held in United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.1985), that some objections to a judge’s failure to recuse himself (or, as in Balistrieri and this case, a belated grant of a motion to recuse) may not be raised on appeal. Sometimes the disqualification of a judge is required, as under 28 U.S.C. §§ 144 and 455(b), because of actual or imputed bias. Disqualification under these statutes is for the benefit of the parties, and errors may be assigned on appeal as grounds of reversal. But § 455(a), which requires recusal when a judge’s “impartiality might reasonably be questioned”, is designed for the benefit of the judicial system as a whole, and even if a judge errs in failing to disqualify himself promptly, the error does not call into question the sub stantive decisions of the court. Because procedural rulings that do not affect the merits of the case (the “substantial rights of the parties”, see Fed.R.Civ.P. 61) are not good reasons to reverse the final judgment, we concluded in Balistrieri and United States v. Murphy, 768 F.2d 1518, 1539-41 (7th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986), that decisions taken before the filing of a motion under § 455(a) are not reviewable at all, and that questions under § 455(a) may not be raised on appeal from the final decision. Cf. Walton v. United Consumers Club, Inc., 786 F.2d 303, 313-14 (7th Cir.1986). So if the problem is one of the appearance of impropriety, as the district judge concluded, it is mandamus or nothing, and Balistrieri expressed a strong preference for mandamus over nothing. See also, e.g., Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977). (We need not decide whether questions under § 455(b), which may be raised on appeal, also may be raised by mandamus.) Perhaps, however, recusal under § 455(a) runs prospectively only," }, { "docid": "4198744", "title": "", "text": "the judge will resolve the case on a basis other than the merits. This is an objective inquiry. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988); New York City Housing Develop. Co. v. Hart, 796 F.2d 976 (7th Cir.1986); Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir.1985). An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person.... Trivial risks are endemic, and if they were enough to require disqualification we would have a system of preempto-ry strikes and judge-shopping, which itself would imperil the perceived ability of the judicial system to decide cases without regard to persons. A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary. In re Mason, 916 F.2d 384, 385-86 (7th Cir.1990). Hook argues that Mary McDade, the Judge’s wife, formerly represented Carmen Viana, a co-defendant in Hook’s criminal trial, and that fact raises the appearance of bias. As a threshold matter, certainly we agree that a judge’s spouse or close relation cannot appear as counsel in any trial or proceedings before that Judge. Further, the Judicial Code of Conduct directs a Judge should be disqualified if the law firm in which his or her spouse is a partner appears before the Judge. See Canon 3C(1) of the Judicial Code of Conduct (1994); Advisory Opinion No. 58 (1993). However, we emphasize that neither Mary McDade nor the Quinn firm has ever appeared before Judge McDade in any proceeding relating to the civil suit or the criminal case. The Quinn firm entered the Cannon litigation for the sole purpose of reviewing Hook’s legal fees submitted to Kemper (Wittek and Viana’s insurance company) and represented Viana’s interests on appeal in the civil case only after George Hook withdrew from the case. The Quinn firm became" }, { "docid": "23602002", "title": "", "text": "Put differently, the judge’s conduct during the proceedings should not, except in the “rarest of circumstances” form the sole basis for recusal under § 455(a). Id. at 555, 114 S.Ct. 1147. B Applying these general principles to situations where the judge receives a threat suggests a two-part process for evaluating whether recusal is required under § 455. The judge may find it necessary to recuse himself under either part. First, under section 455(a), the judge must apply the “objective” standard articulated in Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194. That standard requires recusal if a reasonable third-party observer would perceive that there is a “significant risk” that the judge will be influenced by the threat and resolve the ease on a basis other than the merits. The reasonable third-party observer is not a “partly informed man-in-the-street,” but rather someone who “understand^] all the relevant facts” and has examined the record and law. LoCascio v. United States, 473 F.3d 493, 496 (2d Cir.2007); see also Clemens, 428 F.3d at 1178 (“The reasonable person in this context means a well-informed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious person.” (internal quotation marks and citation omitted)); but see In re Nettles, 394 F.3d 1001, 1002 (7th Cir.2005) (“We must bear in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” (internal quotation marks and citation omitted)). The “objective” standard is a check to avoid even the “appearance of partiality,” Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194, and ensure that the judge’s decision is reasonable to an informed observer. To apply the objective test, the judge must evaluate the threat itself to determine how much risk there is that it may be carried out and how much harm there would be if it were. In deciding whether recusal is appropriate, the judge may wish to consider the following factors: (1) The defendant’s capacity to carry out the threat. Has the defendant taken concrete steps to carry out the threat? Does the defendant have a history of violence or" }, { "docid": "19896629", "title": "", "text": "1996). A. The All Writs Act, 28 U.S.C. § 1651, permits courts created by Act of Congress to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). See generally United States v. Denedo, — U.S. -, 129 S.Ct. 2213, 2220-22, 173 L.Ed.2d 1235 (2009). Courts of appeals traditionally have employed the writ of mandamus to confine a district court to the “lawful exercise of its prescribed jurisdiction.” See Cheney v. United States Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943)). We have held that a petition for writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), is the proper — indeed the only — means of reviewing a district court’s denial of a motion for recusal. The Gov ernment’s petition is therefore the appropriate means of seeking review in this court of the district court’s denial of the Government’s motion for recusal. Section 455(a) of the Judicial Code provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has explained that ‘“[t]he goal of section 455(a) is to avoid even the appearance of partiality.’ ” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (quoting Hall v. Small Bus. Admin., 695 F.2d 175, 179 (5th Cir.1983)). Accordingly, we have required recusal “whenever there is ‘a reasonable basis’ for a finding of an ‘appearance of partiality under the facts and circumstances’ of the case.” Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (quoting SCA Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir.1977)). Recusal is required when a “reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir.1990);" } ]

[ { "docid": "23379236", "title": "", "text": "States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989); United States v. Inigo, 925 F.2d 641, 660 (3d Cir.1991). The sentencing court can give a high level of credence to hearsay statements, going so far as to “credit hearsay evidence over sworn testimony, especially where there is other evidence to corroborate the inconsistent hearsay statement.” Miele, 989 F.2d at 664 (3d Cir. 1993). However, in order to avoid “misinformation of constitutional magnitude,” Sciarrino, 884 F.2d at 97, we require that “information used as a basis for sentencing under the Guidelines ... have ‘sufficient indicia of reliability to support its probable accuracy.’” Miele, 989 F.2d at 663; see also United States v. Torres, 926 F.2d 321, 324 (3d Cir. 1991) (noting necessity that information upon which Guidelines sentences are based be reliable). The Sentencing Guidelines themselves provide: In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a) (1995). The commentary to § 6A1.3 further provides: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” U.S.S.G. § 6A1.3(a), Commentary. We have held that “this standard [“sufficient indicia of reliability”] should be applied rigorously.” Miele, 989 F.2d at 664. In Miele, we vacated the sentence imposed on the defendant because the statements used to support the factual findings for sentencing were found to fall short of the “sufficient indicia of reliability” standard. The statement at issue, involving the quantities of drugs transacted by the defendant, was" } ]

[ { "docid": "589744", "title": "", "text": "469 (1993). Trial courts have significant discretion regarding evidentiary matters in sentencing, and in this case, the district court exercised its discretion in concluding that Officer Prodan was an expert with respect to the opinions he gave and in admitting Prodan’s report and testimony. Under our precedents, “in resolving any dispute concerning a factor pertinent to the sentencing decision, ‘the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Hernandez-Villanueva, 473 F.3d 118, 122 (4th Cir.2007) (quoting U.S.S.G. § 6A1.3(a)). In determining whether to vary from a Guidelines range, a court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence”). The district court did not abuse its discretion in considering Officer Prodan’s report and testimony during the course of sentencing. First, the Federal Rules of Evidence, on which Daubert is based, do not apply at sentencing. See Hernandez- Villanueva, 473 F.3d at 122. In addition, sentencing judges have considerable latitude to consider evidence at sentencing, as authorized by both governing statutes and the Sentencing Guidelines. Finally, as we have already noted, the sentencing judge did not give significant weight to the report or testimony of Officer Prodan, relying principally on Seay’s record and the 1999 report of Dr. Warren. IV Finally, Seay contends that his sentence of 96 months’ imprisonment is unreasonable. He notes that the Sentencing Guidelines called for a sentencing range of 46 to 57 months’ imprisonment, and the district court’s upward variance of five levels resulted in a Guidelines range of 77 to 96 months’ imprisonment, a 68% increase above the original range. Seay argues that the district court inadequately" }, { "docid": "4397795", "title": "", "text": "he was sentenced to five to fifteen years and two to six years (concurrent) in January of 1973.” A report prepared by the Federal Bureau of Investigation’s Identification Division also listed Brown’s 1970 conviction as “Att. Rob.III.” That document was also before the court at sentencing. It was not disputed that the crime of Attempted Robbery 3rd is a crime punishable under §§ 70, 110.05, 160.05 of the New York Penal Law by imprisonment up to four years and is a “violent felony” as defined in U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e)(2)(B). The facts underlying the 1970 conviction as recounted in the presen-tence report were not disputed by Brown, namely, that a woman was knocked down and robbed and that he was initially charged with the more serious offense of Robbery-2nd. The issue posed by the defendant by clear implication, if not explicitly, is the propriety of the district court’s reliance upon the pre-sentence report of the New York City Department of Probation and the information supplied by the Identification Division of the F.B.I. in concluding that Brown was an armed career criminal. In this regard, it is important to note that Rule 1101(d)(3), Fed. R.Ev. provides that the rules of evidence do not apply to sentencing proceedings. 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” And finally, U.S.S.G. § 6A1.3 provides in relevant part that “[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Brown correctly asserts that the government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to U.S.C. § 924(e). It is clear that" }, { "docid": "22042069", "title": "", "text": "as long as the defendant is afforded an opportunity to explain or rebut the evidence.” York, 830 F.2d at 893. The Guidelines themselves recognize this principle: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient in-dicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The commentary to this section explains further: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.” Unreliable allegations shall not be considered. U.S.S.G. § 6A1.3, comment, (other citations omitted); see also United States v. Granados, 962 F.2d 767, 771-72 (8th Cir. 1992) (sentencing court may consider hearsay if reliable). We hold that the Guidelines’ standard for the consideration of hearsay testimony at sentencing meets the appropriate constitutional test and fulfills the Confrontation Clause’s basic purpose of promoting the integrity of the factfinding process. See White v. Illinois, — U.S.-,-, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992). Before considering whether the hearsay testimony introduced at Wise’s sentencing hearing satisfies this standard, we offer a few observations concerning the sentencing court’s role in evaluating information presented in support of an enhanced sentence. As we emphasized in Galloway, “[a]l-though the Guidelines certainly channel the court’s discretion in sentencing, they also underscore the significant responsibility that remains with the district judge.” 976 F.2d at 427. We went on to point out that it is for the district court to resolve" }, { "docid": "9478035", "title": "", "text": "omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § lB1.3(a)(l)(B). Hardamon argues that the district court failed to make a specific finding that the 20 grams of crack Overton claimed Hardamon supplied her with in September of 1996 were part of the conspiracy, and that the information that the judge did rely on was “inherently unreliable.” The government responds that because Hardamon has failed to offer any evidence that the inclusion of the 20 grams was erroneous, the burden of proof does not shift to the government. Thus, the government contends that the district court’s decision to attribute 1.509 kilograms of crack cocaine to Hardamon must be affirmed. At a sentencing hearing, “the rules of evidence do not apply and the sentencing judge is free to consider a wide range of evidence including hearsay.” United States v. Edwards, 115 F.3d 1322, 1326 (7th Cir.1997). Additionally, the Criminal Code provides that: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3577. As we have stated before, [t]he law is very clear that a sentencing judge “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Taylor, 72 F.3d 533, 543 (7th Cir.1995); see also 18 U.S.C. § 3661. A corollary to this general principle is the rule that a sentencing judge “may consider relevant information without regard to the rules of evidence ... provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3 (emphasis added). As this court has explained: The sentencing stage of a trial is one of the most important parts of the criminal" }, { "docid": "22268236", "title": "", "text": "later came back carrying a brown paper bag. Ms. Moya asked him what was in it. He showed her the contents of the bag: bundles of cash. She testified that when she asked Moya what the money was for, \"[h]e said it was given to him in order to persuade the jury in the trial that he was on.” According to Ms. Moya, when she asked her husband why he had taken the bribe, Moya told her that \"[h]e had to do it,” and \"he couldn't get out of what he was doing.” She did not testify that Magluta was mentioned. . In light of this conclusion, we have no reason to address the issue Magluta has raised involving the admission of the statements Moya made to his wife at the time. . Our reversal of Magluta's conviction for obstruction by bribing a juror does not undermine the factual premise of the district court’s preemptive departure decision. Our reversal was based on our conclusion that the juror’s out-of-court statements to the undercover agent were hearsay; that is, the statements did not fit within Fed.R.Evid. 801(d)(2)(E). However, it is well-established that, in sentencing, a district court can consider hearsay even if it was not admissible in determining guilt, so long as there are sufficient indicia of reliability. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.1999) (\"A court may consider any information (including hearsay), regardless of its admissibility at trial, in determining whether factors exist that would enhance a defendant's sentence, provided that the information is sufficiently reliable.”); U.S.S.G. § 6A1.3(a) (\"[T]he court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also 18 U.S.C.A. § 3661. The tape-recorded statements of the juror to the undercover agent clearly have sufficient indicia of reliability for this purpose." }, { "docid": "589743", "title": "", "text": "Even though the plea agreement required Seay to cooperate in the investigation and prosecution of others and stated that incriminating information provided “as a result of the cooperation ... [would] not be used against [Seay],” the interview conducted by Officer Prodan was not to investigate and prosecute crimes against others, and no one suggested that it was designed to serve that purpose. To the contrary, Officer Prodan told Seay that he wanted to learn more about the crime at hand and “what [Seay’s] behaviors were,” making clear that Seay was the sole focus of the interview. In short, Seay has not demonstrated any breach by the government of the plea agreement. Moreover, as already noted, the district court did not consider the report to be significant in fashioning its upward variance. Finally, Seay argues that the district court should not have even considered Officer Prodan’s report and testimony because Officer Prodan was not an expert under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Trial courts have significant discretion regarding evidentiary matters in sentencing, and in this case, the district court exercised its discretion in concluding that Officer Prodan was an expert with respect to the opinions he gave and in admitting Prodan’s report and testimony. Under our precedents, “in resolving any dispute concerning a factor pertinent to the sentencing decision, ‘the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Hernandez-Villanueva, 473 F.3d 118, 122 (4th Cir.2007) (quoting U.S.S.G. § 6A1.3(a)). In determining whether to vary from a Guidelines range, a court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States" }, { "docid": "2720016", "title": "", "text": "it may come.”); Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (explaining that courts have traditionally “exercise[d] a wide discretion in the sources and types of evidence used to assist [them] in determining the kind and extent of punishment to be imposed within limits fixed by law”); see also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (noting that “the sentencing process ... [is] less exacting than the process of establishing guilt”). That is because it is '“[h]ighly relevant — if not essential' — to [the] selection of an appropriate sentence” for the sentencing court to “possess [ ] ... the fullest information possible concerning the defendant’s life and characteristics.” Williams, 337 U.S. at 247, 69 S.Ct. 1079. This broad discretion has been preserved under the sentencing guidelines. In resolving any dispute concerning a factor pertinent to the sentencing decision, “the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a), p.s. And, in selecting a particular sentence within the guideline range (or deciding whether to depart from that range), a district court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” Id. § 1B1.4; see 18 U.S.C.A. § 3661 (West 2000) (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). Nevertheless, we have recognized that “[t]here are ... constitutional limitations” on the generally broad scope of information a court may consider at sentencing. United States v. Lee, 540 F.2d 1205, 1210 (4th Cir.1976). In particular, we have construed various Supreme Court decisions as “recognizing] a due process right to be sentenced only on information which is accurate.” Id. at 1211. For example, in Tucker, the Supreme Court held" }, { "docid": "4397796", "title": "", "text": "F.B.I. in concluding that Brown was an armed career criminal. In this regard, it is important to note that Rule 1101(d)(3), Fed. R.Ev. provides that the rules of evidence do not apply to sentencing proceedings. 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” And finally, U.S.S.G. § 6A1.3 provides in relevant part that “[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Brown correctly asserts that the government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to U.S.C. § 924(e). It is clear that the government may discharge that burden by any relevant evidence having sufficient indicia of reliability. The 1982 presentence report prepared by a New York probation officer based upon prior New York convictions for use by a New York court in imposing sentence upon Brown may similarly be used by a federal court in Vermont with justifiable confidence in its reliability. The fact that a certified copy of Brown’s 1970 conviction may have been more desirable, does not detract from the reliability of the information before the court or from its justifiable reliance upon that information. United States v. Paleo, 967 F.2d 7, 13 (1st Cir.1992) (“The federal sentencing court will normally accept as valid a properly evidenced past conviction. Unless it reveals uneonstitutionality on its face, a certified copy of a court record of conviction or a presentence report’s account of a past conviction will normally prove the fact of a valid conviction”) (emphasis added). In a subsequent opinion reported in 9 F.3d 988 (1992) the court withdrew its prior opinion for reasons which did" }, { "docid": "22042054", "title": "", "text": "free to consider a wide range of relevant material.” Payne v. Tennessee, — U.S.-,-, 111 S.Ct. 2597, 2606, 115 L.Ed.2d 720 (1991); Dawson v. Delaware, — U.S.-,-, 112 S.Ct. 1093, 1097 (1992); see also United States v. York, 830 F.2d 885, 893 (8th Cir.1987) (“A sentencing judge has broad discretion as to the type of information he may consider, as well as its source.”) (pre-Guidelines), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). The practice of conducting a wide-ranging inquiry at sentencing is reflected in the United States Code, the Federal Rules of Evidence, and the Guidelines themselves. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court ... may receive, and consider for the purpose of imposing an appropriate sentence.”); Fed.R.Evid. 1101(d)(3) (rules of evidence do not apply at sentencing); U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.”); U.S.S.G. § 6A1.3(a), p.s. (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”). The difference in the procedures followed and the standard of proof applied at the guilt and sentencing phases “reflects the’judgment that a convicted criminal is entitled to less process than a presumptively innocent criminal defendant, as well as the concern that ‘over-burdened trial courts would be greatly disserved by the time-consuming hearings’ that more intensive procedural protections would require.” United States v. Kikumura, 918 F.2d 1084, 1100 (3d Cir.1990) (citations omitted). In addition, the issues at each stage differ. At the trial itself, the guilt or innocence of the defendant is the sole issue. To avoid prejudice, therefore, evidence of other misconduct" }, { "docid": "21508959", "title": "", "text": "166 L.Ed.2d 539 (2006) (internal citations omitted). The district court must correctly interpret and apply the Guidelines when calculating the appropriate advisory guideline range. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir.2005). In calculating a defendant’s criminal history category, one point is added for each prior sentence under 60 days. See U.S.S.G. § 4Al.l(c). “The term ‘prior sentence’ means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo conten-dere, for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(l). The Commentary notes that a diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. U.S.S.G. § 4A1.1, comment. (n.3). “[W]hen a defendant challenges a factual basis of his sentence, the government has the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.), cert. denied, — U.S. -, 127 S.Ct. 128, 166 L.Ed.2d 95 (2006) (citation omitted). “The district court’s factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the PSI, or evidence presented during the sentencing hearing.” Id/, see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy”). We have held that a certified copy of a conviction is not necessary to support a finding of a conviction. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (noting that, “[wjhile the best approach would always be to produce a certified copy of the conviction, we find the sources the district court relied upon-a PSI, the on-the-record statements of a probation officer, and the notes of another probation officer-when taken together, were sufficiently reliable to support the court’s finding that Herndon had been convicted of the weapons charge in question”); see also United States v. Acosta," }, { "docid": "22827339", "title": "", "text": "Fortier, seemed to emphasize the unusual feature of triple hearsay in that case in a later opinion. He referred to the apparently applicable general rule that affords defendants a chance to explain or rebut hearsay presentence report information, rather than a confrontation right, when there are some indicia of reliability in the information supplied the court: Generally, a sentencing court may consider any and all information in sentencing a defendant. See 18 U.S.C. § 3661. Further, this court has held that \"[u]ncorroborated hearsay evidence contained in a presentence report may be considered by the sentencer provided the persons sentenced are given an opportunity to explain or rebut the evidence.\" United States v. Evans, 891 F.2d 686, 688 (8th Cir.1989) (citing United States v. York, 830 F.2d 885, 893 (8th Cir.1987) (per curiam), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988)), cert. denied, 495 U.S. 931, 110 S.Ct. 2170, 109 L.Ed.2d 499 (1990); but see United States v. Fortier, 911 F.2d 100, 103-04 (8th Cir.1990) (reliance on triple hearsay contained in Presentencing Investigation Report violated confrontation clause). Section 6A1.3(a) of the Guidelines states in part: \"In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.\" United States v. Rivers, 917 F.2d 369, 372 (8th Cir.1990) (footnote omitted). . Caton’s brief referred to United States v. Silverman, 889 F.2d 1531 (6th Cir.1989), for establishing a preponderance of the evidence standard and dealing with a plea agreement and consideration of \"relevant conduct.” . In the “defendant’s version” of the presentence report it is stated: ”[H]e advised that the informant approached him one night to inquire if he could purchase some cocaine.” Catón later sold him cocaine. . Chief Judge Merritt was also on the Barrett panel which held that defendant’s basic sentencing right was “to be sentenced on the basis of accurate information. United States v. Rone, 743 F.2d 1169, 1171 (7th Cir.1984);" }, { "docid": "19952659", "title": "", "text": "genuine acceptance of responsibility where that plea is followed by continued criminal acts. United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir.1996). Consideration of unrelated conduct is not improper because “the defendant’s post-offense conduct can shed significant light on the genuineness of a defendant’s claimed remorse.” Id. at 129. That a defendant’s continuing criminal conduct is different in nature, character, or degree from the offense of conviction does not undermine the fact that it is inconsistent with acceptance of responsibility. Our decision today aligns us with eight of the nine other circuits that have considered this issue. See United States v. Arellano, 291 F.3d 1032, 1035 (8th Cir.2002); United States v. Prince, 204 F.3d 1021, 1023-24 (10th Cir.2000); Ceccarani, 98 F.3d at 130; United States v. McDonald, 22 F.3d 139, 143-44 (7th Cir.1994); United States v. Pace, 17 F.3d 341, 343 (11th Cir.1994); United States v. Olvera, 954 F.2d 788, 793 (2d Cir.1992); United States v. O’Neil, 936 F.2d 599, 600-01 (1st Cir.1991); United States v. Watkins, 911 F.2d 983, 985 (5th Cir.1990). Only the Sixth Circuit has held to the contrary. See United States v. Morrison, 983 F.2d 730, 735 (6th Cir.1993) (holding that subsequent illegal conduct that is unrelated to the underlying offense cannot diminish a defendant’s acceptance of responsibility for the crime of which he was convicted). Because Mara engaged in continued criminal activity following his conviction, the district court did not err in concluding that he had not demonstrated the acceptance of responsibility necessary to receive a reduced sentence under U.S.S.G. § SEl.l(a). Mara also posits that the district court erred in relying on hearsay statements contained in the police report. U.S.S.G. § 6A1.3(a) provides: “In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Here, the statements contained in the report were sufficiently corroborated so as to provide the requisite indicia of reliability. The district court did not abuse" }, { "docid": "22474546", "title": "", "text": "most likely that, in spite of Miele’s arguments that Habera was an unreliable witness and that the PSI estimate was directly contradicted by Hab-era’s testimony at the co-defendants’ trial, the court adopted the PSI’s eight kilogram estimate. . Commentators have begun to criticize this state of affairs, urging greater evidentiary protection in sentencing hearings in light of the critical role of district court fact finding under the Guidelines sentencing regime. See Margaret A. Berger, Rethinking the Applicability of Evidentiary Rules at Sentencing: Of Relevant Conduct and Hearsay and the Need for an Infield Fly Rule, 5 Fed.Sent.Rep. 96 (1992); Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years — The Effect of “Plain Meaning’’ Jurisprudence, The Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo.Wash.L.Rev. 857, 885-91 (1992); Deborah Young, Untested Evidence: A Weak Foundation For Sentencing, 5 Fed.Sent. Rep. 63 (1992); Note, An Argument for Confrontation Under the Federal Sentencing Guidelines, 105 Harv.L.Rev. 1880 (1992). .U.S.S.G. § 6A1.3(a) provides: § 6A1.3 Resolution of Disputed Factors (Policy Statement) (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissability under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support- its probable accuracy. (emphasis added). The commentary to § 6A1.3 provides, in pertinent part: In determining the relevant facts,' sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. United Stated v. Fatico," }, { "docid": "22827415", "title": "", "text": "of trial testimony. Appellant’s first argument is that the sentencing judge erred by considering testimony from a separate trial at appellant’s sentencing hearing. We find no constitutional, statutory, or procedural rule, however, that would bar the sentencing judge’s consideration of relevant and reliable information of the type used in this case. Plainly, the Federal Rules of Evidence do not apply at sentencing. Fed.R. Evid. 1101(d)(3). Moreover, courts have traditionally been allowed to consider all sources of information in formulating an appropriate sentence: “[N]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Prior to the enactment of the Sentencing Guidelines, the circuit courts had uniformly held that reliable hearsay evidence could be considered in the sentencing determination. See e.g., United States v. Shepherd, 739 F.2d 510, 515 (10th Cir.1984) (The sentencing judge may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain.); United States v. York, 830 F.2d 885, 893 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984); United States v. Lee, 818 F.2d 1052, 1055 (2nd Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376. We find nothing in the Guidelines to suggest that a different rule now applies. Section 6A1.3 of the Guidelines provides: (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute con cerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. The Commentary to this section adds: In determining the relevant facts, sentencing judges are not restricted to" }, { "docid": "19952660", "title": "", "text": "the Sixth Circuit has held to the contrary. See United States v. Morrison, 983 F.2d 730, 735 (6th Cir.1993) (holding that subsequent illegal conduct that is unrelated to the underlying offense cannot diminish a defendant’s acceptance of responsibility for the crime of which he was convicted). Because Mara engaged in continued criminal activity following his conviction, the district court did not err in concluding that he had not demonstrated the acceptance of responsibility necessary to receive a reduced sentence under U.S.S.G. § SEl.l(a). Mara also posits that the district court erred in relying on hearsay statements contained in the police report. U.S.S.G. § 6A1.3(a) provides: “In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” Here, the statements contained in the report were sufficiently corroborated so as to provide the requisite indicia of reliability. The district court did not abuse its discretion in using the report to conclude that Mara played a blameworthy role 'in the jailhouse conflict. United States v. Ingham, 486 F.3d 1068, 1076-78(9th Cir.2007). AFFIRMED. . In his reply brief, Mara raises for the first time the argument that the district court erroneously believed that it had no authority to grant an adjustment of his sentence for acceptance of responsibility. We decline to address this issue as it was not raised in Mara’s opening brief. See United States v. Mitchell, 502 F.3d 931, 953 n. 2 (9th Cir.2007)." }, { "docid": "5735797", "title": "", "text": "from seeking an upward departure at sentencing upon the ground that it violates the United States Constitution through the introduction of otherwise inadmissible hearsay evidence. Defendants do not submit authority to support this argument, but merely plead that the court must foreclose the admissibility of hearsay “in a matter of this magnitude and gravity ... under, severely reduced and liberalized standards for the prosecution.” Affidavit of Robert G. Wells, dated June 22, 1998 at ¶ 18. The court appreciates the gravity of defendants’ situation, but it is well-settled that the rules of evidence do not apply to sentencing proceedings. See Fed.R.Evid. 1101(d)(3). In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Title 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” Under U.S.S.G. § 6A1.3: “[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indices of reliability to support its probable accuracy.” It also is well-settled that the requirements of due process in relation to evidence received during a sentencing proceeding do not correspond to the requirements of due process at the trial stage. See Williams v. New York, 337 U.S. 241, 251, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337 (1949). Accordingly, a sentencing judge may consider hearsay statements, evidence of uncharged crimes, dropped counts of an indictment and even alleged criminal activity resulting in an acquittal in determining sentencing. See United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir.1986); see also United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir.1972). As long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into account in passing sentence. See United" }, { "docid": "23655890", "title": "", "text": "clear that a sentencing judge ‘may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’ ... A corollary to this general principle is the rule that a sentencing judge ‘may consider relevant information without regard to the rules of evidence ... provided that the information has [a] sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Lemmons, 230 F.3d 263, 267 (7th Cir.2000) (quoting U.S.S.G. § 6A1.3); see also United States v. Hardamon, 188 F.3d 843, 849 (7th Cir.1999) (stating that during the sentencing phase of a criminal- proceeding “the rules of evidence do not apply and the sentencing judge is free to consider a wide range of evidence including hearsay.”). The rationale for this is clear: The sentencing stage of a trial is one of the most important parts of the criminal process. In order for a judge to be well advised of the facts surrounding the defendant’s background, and particularly in view of the judge’s obligation to the general public, as well as to the defendant, to be fair, reasonable, and just, it is imperative that he be allowed to draw upon a wealth of information concerning the defendant’s background, from his date of birth up to and including the moment of sentencing.... In order to render justice to all the judge must be able to impress upon a defendant through the expansive contents of an all encompassing sentencing report that we are a country of laws and not men. Hardamon, 188 F.3d at 849-50 (quoting United States v. Gerstein, 104 F.3d 973, 978 (7th Cir.1997)). Indeed, the federal criminal code makes clear that: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Accordingly, it is well-settled law that “hearsay is not only an acceptable basis for a sentencing determination,” United" }, { "docid": "22042068", "title": "", "text": "equals approximately one-tenth of the maximum prison term for the offense. An increase of this magnitude does not raise the concerns that the Court expressed in McMillan, 477 U.S. at 87-88, 106 S.Ct. at 2416-17; and thus does not offend due process. Compare Galloway, 976 F.2d at 426 (threefold increase did not offend due process) with Kikumura, 918 F.2d at 1098-1103 (twelve-fold departure requires heightened standards for admissibility and proof). Since the increase here is less than that which Galloway held did not trigger due process concerns, we find no cause to apply the right of confrontation to Wise’s sentencing hearing. VII. Although the Confrontation Clause does not apply at sentencing proceedings, this is not to say that there are no constitutional limitations on the use of hearsay evidence at such proceedings. A defendant may not be sentenced on the basis of “misinformation of constitutional magnitude.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972). “Uncorroborated hearsay evidence ... [is a] proper topic[ ] for the court’s consideration, as long as the defendant is afforded an opportunity to explain or rebut the evidence.” York, 830 F.2d at 893. The Guidelines themselves recognize this principle: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient in-dicia of reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a), p.s. (emphasis added). The commentary to this section explains further: In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy.” Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered “where there is good cause" }, { "docid": "23206208", "title": "", "text": "which contained internal inconsistencies, and the PSR often presented “conelusory facts” without attributing statements to their source. We do not agree with the appellants that the district court’s reliance on the PSR was misplaced. While it is true that a criminal defendant “has a due process right to be sentenced on the basis of reliable information,” United States v. Westbrook, 986 F.2d 180, 182 (7th Cir.1993) (citations omitted), it is well established that the evidentiary standards that apply to sentencing are not as stringent as those applicable in a criminal trial. The Criminal Code provides that: No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States, may receive and consider for the purpose of imposing an appropriate sentence. 18 U.S.C. § 3661. See also Fed.R.Evid. 1101(d)(3) and U.S.S.G. §. 6A1.3 (hearsay evidence is admissible at sentencing). When sentencing a defendant, “a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Harty, 930 F.2d 1257, 1268 (7th Cir.1991), quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). “[S]o long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into account in passing sentence.” United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993); see also U.S.S.G. § 6A1.3(a). Provided that the facts contained in a PSR “bear sufficient indicia of reliability to support their probable accuracy,” the district court may adopt them “as support for its findings and conclusions” regarding the quantity of drugs attributable to a defendant. United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995). We believe that the information relied upon by the probation office in calculating drug quantities, coming as it did from at least half a dozen individuals with first-hand knowledge of the drug-distribution network, bore “sufficient indicia of reliability” to" }, { "docid": "22944840", "title": "", "text": "not, by itself, render the condition invalid.”). Moreover, we have previously held in an unpublished opinion that a sentencing court may consider charged criminal behavior of the defendant even in the absence of a conviction if the defendant admitted the behavior or the information was derived from a reliable source. See Deleon, 280 FedAppx. at 351 (holding that district court did not abuse its discretion or plainly err in considering defendant’s indictment for aggravated sexual assault of a child where the information was contained in the PSR and the defendant failed to state that he did not commit the offense); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); Rodriguez, 558 F.3d at 412 (“Title 18 of the United States Code, section 3661 ... provides ‘[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.’ ”); United States v. Kingsley, 241 F.3d 828, 833 n. 7 (6th Cir.2001) (“[P]rior criminal behavior by the defendant, which, as in the case sub judice, the defendant did not deny during his sentencing proceeding, and/or which was supported by information derived from a reliable source, is relevant to sentencing, even if that prior criminal conduct did not lead to a criminal conviction.”). The record shows that the district court was aware of both Weathertoris “lengthy history” and the state warrant for Weathertoris arrest. Although Weatherton describes the warrant for his arrest as an “unsubstantiated allegation,” the petition for revocation contains a reasonably detailed account of the alleged crime, and in light of Weathertoris apparent flight and his failure to deny having committed the crime either before the district court or on appeal, we cannot say that the warrant plainly lacked sufficient indicia of" } ]

[ { "docid": "926548", "title": "", "text": "the wage earner dies. Unless an application has been filed by the child or on its behalf, whatever rights may exist, remain inchoate. We conclude that the government is correct on this issue and we must make an overall examination of the wage earner’s contributions to his children before he died. “evidence indicate(d) that Kennedy (insured) was a white liquor store owner in a black community in Kentucky and that plaintiff’s mother was a 13 year-old black female at the time of plaintiffs conception. No bastardy action was brought against Kennedy because of the racial repercussions that might have arisen in the town; such an action, if successful, would have avoided the dispute under the terms of § 416(h)(3)(A)(i) or section 416(h)(3)(C)(i). Id. at 2199-65. III. There is no universally accepted test for determining what constitutes “contributing to the support of the applicant,” under § 416(h)(3)(C)(ii) of the Act. A majority of courts apply either a regular and substantial “support test” or a “regular and continuous support test.” Both approaches stress that “sporadic” contributions are insignificant for analytical purposes vis-á-vis the Act, presumably because the physical well being of the child is not enhanced by sporadic contributions. This is precisely the Secretary’s position. In its argument, the Secretary concedes that the wage earner made some contributions, “(t)hey were .... not continuous and probably had stopped altogether sometime before Hamilton’s death. Hamilton’s contributions, therefore, cannot qualify as sufficient under either test.” Assuming, as the Secretary maintains, that Mr. Hamilton’s contributions are inadequate under “either test,” we find the tests inappropriate under these circumstances. Obviously, continuously regular and substantial contributions is a just standard when the wage earner’s income is regular and substantial. But where the income of a wage earner lacks continuity and substantiality and contributions are nevertheless given, a different criterion should be applied. Where a wage earner is poor and earns an irregular income, it is ludicrous to require regular and substantial payments to his children born out of wedlock or not. The wage-earner is barely supporting himself. Instead, attention should be focused on whether the contributions that were" } ]

[ { "docid": "9328028", "title": "", "text": "Allen, born March 23, 1963, and Verzena C. Morris, born March 8, 1965. 2. That before his death, Charles W. Morris, never acknowledged in writing that he was the father of either of the children and that he was never decreed by a court to be the father of either child or ordered to contribute to their or either of their support. 3. That it has not been shown by satisfactory evidence that Charles W. Morris was living with or contributing to the support of the children involved or either of them. (Allen R. 12). In accordance with these findings, the ALJ denied benefits to the two children. His decision became the final decision of the Secretary when the Appeals Council denied Ms. Allen’s request for review. (Allen R. 2). The present action was commenced in this court on November 7, 1973. Plaintiffs Allen and Morris argue that the Secretary’s decision that they were not eligible for benefits under the “living with or contributing to [their] support” provision of 42 U.S.C. § 416(h)(3)(C)(ii) was erroneous and is not supported by substantial evidence. In essence, they contend that the Secretary applied incorrect legal standards to the evidence and that the application of correct legal standards would produce a different result. They submit that the Secretary employed the wrong test for “support” in requiring the wage earner father’s contributions to be both regular and substantial. They further allege that the “living with” requirement was met in that the wage earner spent weekends with Ms. Allen and the children. The courts have been nearly unanimous in holding that the test in determining the “support” requirement is whether the contributions, if any, are regular and substantial. Lucas v. Secretary, Dept. of Health, Education and Welfare, 390 F.Supp. 1310, 1313 (D.R.I.1975), rev’d on other grounds, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Kasey v. Richardson, 331 F.Supp. 580, 586 (W.D.Va.1971); Turley v. Cohen, 325 F.Supp. 1067, 1070 (S.D.W.Va. 1971); Carey v. Social Security Board, 62 F.Supp. 458, 459-60 (W.D.Ky.1945); cf. Norton v. Richardson, 352 F.Supp. 596, 600-01 (D.Md.1972) (Blair, J.); but see," }, { "docid": "23491361", "title": "", "text": "Action No. 2824, Feb. 9, 1972); Dean v. Richardson, CCH Unemployment Ins. Rep., Par. 16,767 (S.D.W.Va., Civ. Action No. 71-255-CH, July 3, 1972); and Mobley v. Richardson, CCH Uemployment Ins. Rep., Par. 16,439 (W.D.N.C., Civ. Action No. 2675, Sept. 8, 1971). In each of those cases the court found that the claimant had met the “support” test. Moreover, none of those cases involved a posthumous child. In Norton v. Richardson, 352 F.Supp. 596 (D.Md.1972), reconsidered sub nom., Norton v. Weinberger, 364 F.Supp. 1117 (D.Md.1973) (3 Judge Court), vacated and remanded, 418 U.S. 902, 94 S.Ct. 3191, 41 L.Ed.2d 1150 (1974), the district court held that there was no evidence that the wage earner in that case, by contributing only six dollars and some baby clothes to the child when it was born, was supporting the child “regularly” and “continuously” when he, the wage earner, died two years later. While the court in Norton used the “regular” and “continuous” language, it is clear that a gift of six dollars and some baby clothes followed by two years of no contributions at all could not meet any conceivable test of support. The Secretary conceded that Peter McGinn, Jr., the wage earner, was the father of Devlin Adams. The record shows that McGinn, at the time of his death, was contributing to Adams’ support for the purposes of satisfying the requirements of 42 U.S.C. Sec. 416(h)(3)(C)(ii). Accordingly, the district court should have entered summary judgment in the appellant’s favor. Reversed and remanded. . 42 U.S.C. § 402(d)(l)(C)(ii). . 42 U.S.C. §§ 416(e)(1); 402(d)(3)(A). . 42 U.S.C. §§ 416(h)(2)(B); 416(e)(1); 402(d)(3). . 42 U.S.C. §§ 416(h)(3)(C)(i); 416(e)(1); 402(d)(3). . 42 U.S.C. §§ 416(h)(2)(A); 416(e)(1); 402(d)(3). . 42 U.S.C. §§ 416(h)(3)(C)(ii); 416(e)(1); 402(d)(3). . In reviewing this fear of the Secretary, we are not unmindful that Congress’ fear of such an onslaught of claims was apparently not so overwhelming. The statutory requirement of dependency is “presumed” away in most instances. It is more than likely that there are significant numbers of legitimate and illegitimate children qualifying for benefits under 42 U.S.C. Secs. 402(d)(3) and 416(h)(3)(C)(i)" }, { "docid": "7415589", "title": "", "text": "showing of paternity. The statutory scheme was upheld as a reasonable method of fulfilling the Act’s goal of replacing support lost by a child when his or her parent dies. Id. 427 U.S. at 509-10, 96 S.Ct. at 2764. We therefore reject Wolfe’s contention that, in the case of a posthumous illegitimate child, the Act’s remedial goals cannot be fulfilled if a showing of actual dependency at the time of the wage earner’s death is required. Because Bialczyk was not living with Wolfe, Wolfe was required to show Bialc-zyk was contributing to David's support at the time of Bialczyk’s death. The question is how much support must be shown. The Secretary’s regulations require proof that contributions were made regularly and were large enough to meet an important part of the recipient’s ordinary living costs. 20 C.F.R. § 404.366(a)(2). This is the “regular and continuous” or “regular and substantial” test. Wolfe argues that this test is inappropriate in the case of an illegitimate posthumous child, and urges us to adopt as the test whether the support was commensurate with the needs of the unborn child at the time of the father’s death. This test was first enunciated in Adams v. Weinberger, 521 F.2d 656, 660 (2d Cir.1975), and was adopted by the Fourth Circuit in Parsons for Bryant v. Health & Human Services, 762 F.2d 1188, 1191 (4th Cir.1985), and the Ninth Circuit in Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir.1982). We agree with Doran that the Secretary’s test “improperly interprets the statutory mandate and frustrates the goals of the Social Security Act” by denying “virtually all posthumous illegitimate children the ability to demonstrate their father’s support.” Id. We therefore adopt the Do-ran test that support must be commensurate with the unborn child’s needs at the time of the father’s death, taking into account the father’s economic circumstances. However, we reject any notion that no support need be shown at the very early stages of pregnancy because the needs of the unborn child at that point are negligible. See Orsini ex rel. Orsini v. Sullivan, 903 F.2d 1393, 1396-97" }, { "docid": "926550", "title": "", "text": "made to the support of his children were important to them given their needs and the wage earner’s economic circumstances and ability to support. Certain facts place this case within the above category. At the time of his death Mr. James Henry Hamilton was a retired stone mason with a minimum income. Two of his children lived with him. Two others lived with Mrs. Nannie Lou Boyland, their mother, who alternatively worked or relied on public assistance for additional support. Despite his poverty, Mr. Hamilton on numerous occasions gave $5.00-$10.00 to his children (living with their mother) or to others for them, bought them clothing and presents, gave them lunch money and allowed them to stay in his home for weeks at a time. We cannot ignore the obvious importance of these contributions to Marilyn Lou and Lorenzo Knight. The lack of economic well-being or regular income does not eliminate the statutory requirement of “contribution.” However, where the resources of the wage earner are scarce and the contributions to his children important to them, the statutory requirements can be satisfied. We emphasize that the periodic contributions were made to the wage earner’s own children albeit born out of wedlock. The children should not be denied benefits because the wage earner could only afford small irregular payments. Accordingly, we find that the decision of the Secretary that James Henry Hamilton was not contributing to the support of his two children, Mary Lou and Lorenzo Knight, is unsupported by substantial evidence. This case is reversed and remanded for an award of benefits. . The birthdates were June 27, 1959 and August 27, 1964, respectively. . It appears from the record that the deceased, James H. Hamilton, lived in a common-law relationship with Mrs. Nannie Lou Boyland for about twenty (20) years. During this time period, Mrs. Boyland alleged she bore five (5) children, all whom were fathered by the deceased. . These requirements are as follows: APPLICABLE STATUTORY PROVISIONS Section 202(d) of the Act (42 U.S.C. § 402(d)), as pertinent here, provides as follows: ■ “(1) Every child (as defined in section" }, { "docid": "23491358", "title": "", "text": "be guided by common sense and the Congressional desire to benefit all children who have lost the support of insured parents. An unborn child is totally dependent upon its mother for its human needs. Thus, a legal requirement that the father’s support of the unborn child must be “regular” and “continuous” is purposeless. Support for an unborn child cannot be measured on that basis. Such a test would prevent almost all posthumous children from qualifying under 42 U.S.C. Sec. 416(h)(3)(C)(ii), a result clearly not warranted, given the purposes of the insurance provisions of the SSA. Applying the “regular” and “continuous” test to the measure of support given Ms. Adams is improper since the dependency of the mother is not at issue. In determining whether or not the insured, wage earning father was contributing to the support of the illegitimate, posthumous child applicant at the time of the father’s death, a more relevant test is called for. We must ask whether the support by the father for the unborn child was commensurate with the needs of the unborn child at the time of the father’s death. If it was, then the statutory requirements have been met. In the case at bar, the unborn Devlin Adams received the benefit of McGinn’s apartment without any apparent contributions to the rent on his mother’s part. Ms. Adams received sporadic cash contributions whenever she needed money and, on occasion, when McGinn simply felt the urge to be generous. Whether or not Ms. Adams used these payments for food, medical care and other living expenses, they relieved her of having to spend her own money for those expenses and thus indirectly benefited the unborn child. These contributions must be considered “support” for the purposes of the Act. Most telling, however, was the $100 contribution to be used for the hospital bill. There was no other way for McGinn to make a more direct contribution to the support of the unborn child. There was no way for him to furnish food directly for the unborn child’s consumption. Nor was there any need to furnish children’s clothing. The" }, { "docid": "9328048", "title": "", "text": "be able to inherit from his father in Mississippi. If he could inherit from his father in Mississippi, he would satisfy one of the additional showings required of illegitimates under the Act — that contained in 42 U.S.C. § 416(h)(2). See note 4 supra. Having satisfied this inheritance requirement, he would be qualified for benefits as an illegitimate making one of the necessary statutory showings. See Mathews v. Lucas, 427 U.S. 495, 514 n. 17, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Jimenez v. Weinberger, 417 U.S. 628, 631 n. 2, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). . It is clear that a statute may be prospectively applied by resort to antecedent facts. See, e. g., Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922); Reynolds v. United States, 292 U.S. 443, 449, 54 S.Ct. 628, 78 L.Ed. 1474 (1934); United States v. Jacobs, 306 U.S. 363, 367 (1939). To do so does not render a statute retroactive. Defendant here does not argue against the use of antecedent facts to establish legitimacy under the current Maryland statute. . See note 7, supra. . Verzena Morris was bom on March 8, 1965, subsequent to the death of the wage earner on December 17, 1964. (Allen R. 56, 58). However, if he was “living with” Ms. Allen at the time she was pregnant with Verzena, the child would be entitled to benefits despite her posthumous birth. See Wagner v. Finch, 413 F.2d 267, 268-69 (5th Cir. 1969). . Such a construction seems both reasonable and liberal towards the child. It disregards occasional gifts and minor contributions at irregular intervals, but if the contributions are regular, whether voluntary or involuntary and constitute a material factor in the child’s support, even though not the principal factor, it seems necessary to hold that the parent was contributing to the support of the child. Carey v. Social Security Board, 62 F.Supp. 458 at 460 (W.D.Ky.1945). . “Resolution of conflicts in the evidence . . is a function solely within the province of the Secretary as the trier of the facts.”" }, { "docid": "7415588", "title": "", "text": "legitimate claim to support, without regard to actual dependency at death. It accepted instead the Secretary’s contention that the Act was intended to replace support lost by a child when his or her parent dies. Id. 427 U.S. at 507, 96 S.Ct. at 2763. Actual dependency need not be shown if the child would be entitled to inherit under state laws governing intestate succession of personal property, 42 U.S.C. § 416(h)(2)(A); if the parents went through a marriage ceremony but the marriage is invalid due to a legal impediment, 42 U.S.C. § 416(h)(2)(B); or if the parent, before death, acknowledged in writing that the applicant is his or her child, had been decreed by a court to be the parent, or had been ordered by a court to contribute child support because the applicant was his child. 42 U.S.C. § 416(h)(3)(C)(i). Congress has determined that in such instances, dependency “is objectively probable.” Mathews, 427 U.S. at 509, 96 S.Ct. at 2764. Congress has also apparently determined that dependency is not sufficiently established solely by a showing of paternity. The statutory scheme was upheld as a reasonable method of fulfilling the Act’s goal of replacing support lost by a child when his or her parent dies. Id. 427 U.S. at 509-10, 96 S.Ct. at 2764. We therefore reject Wolfe’s contention that, in the case of a posthumous illegitimate child, the Act’s remedial goals cannot be fulfilled if a showing of actual dependency at the time of the wage earner’s death is required. Because Bialczyk was not living with Wolfe, Wolfe was required to show Bialc-zyk was contributing to David's support at the time of Bialczyk’s death. The question is how much support must be shown. The Secretary’s regulations require proof that contributions were made regularly and were large enough to meet an important part of the recipient’s ordinary living costs. 20 C.F.R. § 404.366(a)(2). This is the “regular and continuous” or “regular and substantial” test. Wolfe argues that this test is inappropriate in the case of an illegitimate posthumous child, and urges us to adopt as the test whether the support" }, { "docid": "18594201", "title": "", "text": "intestacy laws, if two requirements are met: (1) if the applicant is able to provide sufficient evidence to the Secretary establishing that the insured wage earner is indeed the applicant’s natural parent; and (2) if the insured wage earner “was living with or contributing to the support of the applicant at the time such insured individual died.” In the present case, the Secretary concedes that the first prong of the test has been satisfied. Moreover, the plaintiff does not contest the finding that Kroll never lived with her. The only issue, therefore, is whether there is substantial evidence supporting the Secretary’s conclusion that Kroll did not contribute sufficiently to Deanne Schaefer’s support to justify an award of benefits. The Secretary has articulated the support requirement as follows: Contributions must be made regularly and must be large enough to meet an important part of your [i.e., the applicant child’s] ordinary living costs. Ordinary living costs are the costs for your food, shelter, routine medical care, and similar necessities. If the insured person only provides gifts or donations once in a while for special purposes, they will not be considered contributions for your support. Although the insured’s contributions must be made on a regular basis, temporary interruptions caused by circumstances beyond the insured person’s control, such as illness or unemployment, will be disregarded unless during this interruption someone else takes over responsibility for supporting you on a permanent basis. 20 C.F.R. § 404.366(a)(2) (1985). Courts have not, however, applied the support requirement of section 416(h)(3)(C)(ii) rigidly in unique circumstances such as are presented by this case. See McNeal v. Schweiker, 711 F.2d 18, 21 (3d Cir.1983); Jones v. Harris, 629 F.2d 334, 336 (4th Cir.1980). At least several courts have recognized that a regular, substantial and continuous support test that is generally applied to situations where both the applicant child and the wage earner (i.e., in this case the father) are living is only of marginal value in cases where the child is born after or shortly before the wage earner’s death. See Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir.1982);" }, { "docid": "7415585", "title": "", "text": "SEYMOUR, Circuit Judge. Della M. Wolfe, f/k/a Della M. Weyburn, appeals from a judgment affirming a decision of the Secretary of Health and Human Services denying her application for child’s insurance benefits under the Social Security Act on behalf of her son, David Wey-burn. Wolfe filed her application based on the earnings of Earl Bialczyk, the alleged biological father of the child. The claim has been denied at all levels of the appeal process. We affirm. I. Wolfe met Bialczyk at the end of April 1988. They began living together in the early part of May 1988, although they maintained separate residences. Wolfe testified that she told Bialczyk in the latter part of August 1988 that she was pregnant with his child, two days after learning of this fact. The couple separated in early September 1988. Bialczyk died on October 5, 1988. David was born on April 26, 1989. For a child of an insured deceased wage earner to qualify for child’s insurance benefits under the Social Security Act, the child must prove he or she was dependent upon the insured parent at the time of the parent’s death. 42 U.S.C. § 402(d)(l)(C)(ii). Legitimate and adopted children are conclusively presumed to have been dependent. 42 U.S.C. § 402(d)(3)(A). Illegitimate children are presumed dependent if certain tests are met. The only test at issue in this appeal is found in 42 U.S.C. § 416(h)(3)(C)(ii): that the wage earner is shown by satisfactory evidence to be the child’s parent and to have been living with or contributing to the support of the child at the time of the wage earner’s death. The administrative law judge (AU) found that Bialczyk was not David’s biological father, and that Bialczyk was not living with or contributing to David’s or Wolfe’s support at the time of Bialczyk’s death. Applying the test that contributions must be regular and substantial, in cash or in kind, to constitute contributing to support, the AU concluded the evidence did not establish that Bialczyk contributed to Wolfe’s or David’s support. After Wolfe’s appeal of the AU’s decision was denied, she filed this" }, { "docid": "23491354", "title": "", "text": "of the insured individual’s death that individual was indeed the child’s father and that he was either living with or contributing support to the child. If Devlin Adams is to qualify for benefits, he must fit into this last category. Under the statute he must show that the insured wage earner was his father and that, at the time of his death, the father was living with him or contributing support to him. Although the administrative law judge found that there was insufficient evidence to conclude that Devlin Adams had been fathered by McGinn, the Secretary has since conceded that McGinn was Devlin’s father. In trying to determine whether or not the appellant has met the other statutory requirements of 42 U.S.C. Sec. 416(h)(3)(C)(ii), we are confronted with the fact that he was a posthumous child. Although a posthumous child is not foreclosed from benefits merely because he was not born prior to the insured individual’s death, Wagner v. Finch, 413 F.2d 267 (5 Cir., 1969); Moreno v. Richardson, 484 F.2d 899, 904 (9 Cir., 1973); Social Security Ruling 68-22 (CB 1968, 66), that fact makes any standards used to measure support in cases involving living children only marginally helpful. After reviewing the cases in the area, the administrative law judge and the district court both determined that the appellant did not qualify under the “support” test because the support given by McGinn was not “regular” and “continuous.” The administrative law judge initially determined that the support must also have been “substantial,” but the district court properly held that there is no such legal requirement. The Social Security Act is remedial and its humanitarian aims necessitate that it be construed broadly and applied liberally. Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 (2 Cir., 1972); Haberman v. Finch, 418 F.2d 664, 667 (2 Cir., 1969). The purpose of the sections of the Act involved here is to provide support to children who have lost either the actual support of an insured parent or the anticipated support which that parent would have been expected to give had" }, { "docid": "7415586", "title": "", "text": "she was dependent upon the insured parent at the time of the parent’s death. 42 U.S.C. § 402(d)(l)(C)(ii). Legitimate and adopted children are conclusively presumed to have been dependent. 42 U.S.C. § 402(d)(3)(A). Illegitimate children are presumed dependent if certain tests are met. The only test at issue in this appeal is found in 42 U.S.C. § 416(h)(3)(C)(ii): that the wage earner is shown by satisfactory evidence to be the child’s parent and to have been living with or contributing to the support of the child at the time of the wage earner’s death. The administrative law judge (AU) found that Bialczyk was not David’s biological father, and that Bialczyk was not living with or contributing to David’s or Wolfe’s support at the time of Bialczyk’s death. Applying the test that contributions must be regular and substantial, in cash or in kind, to constitute contributing to support, the AU concluded the evidence did not establish that Bialczyk contributed to Wolfe’s or David’s support. After Wolfe’s appeal of the AU’s decision was denied, she filed this action in federal district court. The district court concluded Wolfe did not prove that Bialczyk contributed to her support under either the regular and substantial test or under a more liberal standard. It declined to rule on the Secretary’s finding that paternity was not established, holding that the issue was moot. II. Wolfe argues on appeal that because all children born in Oklahoma are considered legitimate, Okla.Stat. tit. 10, § 1.2 (1987), and entitled to support from their parents under state law, id. § 4, David had a reasonable expectation of receiving support from Bialczyk, which the Secretary improperly failed to consider. She maintains that a test which ignores anticipated support for a posthumous illegitimate child ignores the Congressional intent that benefits replace the support the child reasonably could have expected. In Mathews v. Lucas, 427 U.S. 495, 508 and n. 14, 96 S.Ct. 2755, 2763 and n. 14, 49 L.Ed.2d 651 (1976), the Court rejected the argument that the Act was intended to provide support for an insured decedent’s children if they had a" }, { "docid": "23491360", "title": "", "text": "payment toward the hospital bill, the first tangible expense directly related to the child’s well-being after birth, was a pay ment directly toward the support of the child. The evidence also reveals that McGinn intended to pay the entire expense of the child’s birth. Furthermore, McGinn expressed a desire to care for the child if Ms. Adams did not want it. Short of forcing the mother to take money that she did not need at the time, McGinn could not have contributed any more support than he did. His death prevented him from doing any more after the child’s birth. Under these circumstances it is clear that McGinn’s support of Devlin Adams was commensurate with his needs at the time of McGinn’s death. The law requires no more than that, This opinion does not conflict with the district court cases cited by the Secretary. See Bridges v. Sec. of HEW, CCH Unemployment Ins. Rep., Par. 16,480 (E.D.N.Y., Civ. Action No. 69-C-1327, Nov. 24, 1971); Crisp v. Richardson, CCH Unemployment Ins. Rep., Par. 16,612 (W.D.N.C., Civ. Action No. 2824, Feb. 9, 1972); Dean v. Richardson, CCH Unemployment Ins. Rep., Par. 16,767 (S.D.W.Va., Civ. Action No. 71-255-CH, July 3, 1972); and Mobley v. Richardson, CCH Uemployment Ins. Rep., Par. 16,439 (W.D.N.C., Civ. Action No. 2675, Sept. 8, 1971). In each of those cases the court found that the claimant had met the “support” test. Moreover, none of those cases involved a posthumous child. In Norton v. Richardson, 352 F.Supp. 596 (D.Md.1972), reconsidered sub nom., Norton v. Weinberger, 364 F.Supp. 1117 (D.Md.1973) (3 Judge Court), vacated and remanded, 418 U.S. 902, 94 S.Ct. 3191, 41 L.Ed.2d 1150 (1974), the district court held that there was no evidence that the wage earner in that case, by contributing only six dollars and some baby clothes to the child when it was born, was supporting the child “regularly” and “continuously” when he, the wage earner, died two years later. While the court in Norton used the “regular” and “continuous” language, it is clear that a gift of six dollars and some baby clothes followed by two" }, { "docid": "926547", "title": "", "text": "U.S.C. § 402(d)(1)(A) requires a child to file an application before entitlement to child’s insurance benefits “vests.” We think that Congress intended to create an alternative time to determine whether a deceased wage earner “contributed” to the support of the claimant while the wageeamer was alive. Had the plaintiff filed an application for benefits prior to Mr. Hamilton’s death, the controlling statutory provisions indicate that “contribution to the support of the children” may be shown at the time of the eligibility of the wage earner. However we decline to interpret the introductory phrase of § 416(h)(3)(C)(i) “in the case, of a deceased individual” as applying only where the insured died prior to age 65 and prior to eligibility for benefits. There are no such qualifying words in the statute excluding those deceased individuals who were eligible for benefits before they died. Consequently we conclude, from the wording of the statute, that Congress provided a “child” two opportunities for applying for benefits: One, when the wage earner, himself, becomes eligible for benefits and the other, when the wage earner dies. Unless an application has been filed by the child or on its behalf, whatever rights may exist, remain inchoate. We conclude that the government is correct on this issue and we must make an overall examination of the wage earner’s contributions to his children before he died. “evidence indicate(d) that Kennedy (insured) was a white liquor store owner in a black community in Kentucky and that plaintiff’s mother was a 13 year-old black female at the time of plaintiffs conception. No bastardy action was brought against Kennedy because of the racial repercussions that might have arisen in the town; such an action, if successful, would have avoided the dispute under the terms of § 416(h)(3)(A)(i) or section 416(h)(3)(C)(i). Id. at 2199-65. III. There is no universally accepted test for determining what constitutes “contributing to the support of the applicant,” under § 416(h)(3)(C)(ii) of the Act. A majority of courts apply either a regular and substantial “support test” or a “regular and continuous support test.” Both approaches stress that “sporadic” contributions are" }, { "docid": "18594203", "title": "", "text": "Adams v. Weinberger, 521 F.2d 656, 659-60 (2d Cir.1975). Recognizing that, especially early in the pregnancy, the needs of the fetus are primarily met by the mother, these courts have taken an approach which focuses on the level of support provided by the father relative to the actual needs of the child as well as the father’s ability to make contributions. E.g., Adams, 521 F.2d at 660 (the statutory requirements for an award of benefits are met if “the support by the father for the unborn child was commensurate with the needs of the unborn child at the time of the father’s death”). See Do-ran, 681 F.2d 608-09 (adopting test articulated in Adams and also taking “into account the economic circumstances of the child’s father”). Cf. Boyland v. Califano, 633 F.2d 430, 434 (6th Cir.1980) (“The lack of economic well-being or regular income does not eliminate the statutory requirement of ‘contribution.’ However, where the resources of the wage earner are scarce and the contributions to his children important to them, the statutory requirements can be satisfied.”). Nonetheless, in cases involving children born after or shortly before the wage earner’s death some tangible support is still required to justify an award of benefits under section 416(h)(3)(C)(ii); a mere expectation of support from the insured wage earner is not enough. Doran, 681 F.2d at 609-10 (father’s assistance in moving mother of unborn child and in performing household repairs sufficient to fulfill support requirement, especially in light of father’s relative lack of affluence and three-month-old fetus’ minimal needs); Adams, 521 F.2d at 660-61 (providing an apartment for the mother of the unborn child, “sporadic cash contributions,” and payment of a portion of medical expenses sufficient to meet support requirement). See Gay on Behalf of McBride v. Heckler, 583 F.Supp. 499, 502 (N.D.Ga.1984) (noting that the grant of “benefits to illegitimate children who are born after their fathers’ death and whose mothers received no financial support from the fathers in preparation for their birth would be contrary to ... Congressional intent because any indicia of dependency on the insured wage-earners would be lacking”). Even" }, { "docid": "23331832", "title": "", "text": "the less stringent burden of persuasion of § 416(h)(3)(C)(ii). As we noted above, we perceive no reason to disturb that credibility determination. We do note that Imani takes issue with the requirements of § 416(h)(3)(C)(ii), and argues that they invest the Secretary with “unbridled discretion.” An objection to the latitude accorded an agency by statute, as opposed to regulation, is best addressed to the legislature. In any event, we need not extensively discuss the standard for determining paternity under that provision, because there is simply nothing in the record to support the second requirement of § 416(h)(3)(C)(ii), i.e., that Williams was either living with or contributing to the support of Terrón at the time of his death. It is true that some adjustment to the manner of proving support should be made when the applicant is an illegitimate child born after his alleged father (especially one who was not regularly employed) dies. In such a case, the attention and support conferred upon the mother inures to the benefit of the fetus, and the Secretary should consider whether the alleged aid is commensurate with the needs of the unborn child at the time of the father’s demise. See Schaefer v. Heckler, 792 F.2d 81, 85-87 (7th Cir.1986). Nonetheless, as we noted in Schaefer, “in cases involving children born after or shortly before the wage earner’s death some tangible support is still required ...; a mere expectation of support from the insured wage earner is not enough.” Id., at 86. That conclusion is controlling here. Imani did not show that during the course of their brief relationship Williams was living with her or that he was supporting her. He apparently spent some money on beer and food when they were together, but to say that these expenditures satisfy § 416(h)(3)(C)(ii) means that courtship is tantamount to support, which, in view of the purposes of the Act, see Mathews v. Lucas, 427 U.S. 495, 507, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651 (1976), cannot be correct. Imani and Williams broke off their relationship and never saw each other again because Williams refused to" }, { "docid": "9328029", "title": "", "text": "and is not supported by substantial evidence. In essence, they contend that the Secretary applied incorrect legal standards to the evidence and that the application of correct legal standards would produce a different result. They submit that the Secretary employed the wrong test for “support” in requiring the wage earner father’s contributions to be both regular and substantial. They further allege that the “living with” requirement was met in that the wage earner spent weekends with Ms. Allen and the children. The courts have been nearly unanimous in holding that the test in determining the “support” requirement is whether the contributions, if any, are regular and substantial. Lucas v. Secretary, Dept. of Health, Education and Welfare, 390 F.Supp. 1310, 1313 (D.R.I.1975), rev’d on other grounds, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Kasey v. Richardson, 331 F.Supp. 580, 586 (W.D.Va.1971); Turley v. Cohen, 325 F.Supp. 1067, 1070 (S.D.W.Va. 1971); Carey v. Social Security Board, 62 F.Supp. 458, 459-60 (W.D.Ky.1945); cf. Norton v. Richardson, 352 F.Supp. 596, 600-01 (D.Md.1972) (Blair, J.); but see, Johnson v. Finch, 350 F.Supp. 945, 948 (N.D.Tex. 1972) . The ALJ properly applied this standard in making his determination, and the only question for the court is whether his decision that the contributions at issue were not regular and substantial is supported by substantial evidence. The evidence of support is the testimony of Verna Allen and her cousin, Judy Williams, a welfare case worker, that the deceased wage earner regularly gave money and occasionally bought clothes for plaintiff Vernon Allen. (Allen R. 28). Additionally, Ms. Williams testified that Morris had purchased diapers for the then unborn Verzena Morris. (Allen R. 29). The record reveals that the ALJ affirmatively evaluated this evidence but rejected it in favor of evidence to the contrary. The evidence to the contrary found persuasive by the ALJ was that Verna Allen had brought a support action against the wage earner which she abandoned when she learned that he was sick. (Allen R. 11, 59-60). The clear inference, relied on by the ALJ, is that the deceased was not in fact" }, { "docid": "7415587", "title": "", "text": "action in federal district court. The district court concluded Wolfe did not prove that Bialczyk contributed to her support under either the regular and substantial test or under a more liberal standard. It declined to rule on the Secretary’s finding that paternity was not established, holding that the issue was moot. II. Wolfe argues on appeal that because all children born in Oklahoma are considered legitimate, Okla.Stat. tit. 10, § 1.2 (1987), and entitled to support from their parents under state law, id. § 4, David had a reasonable expectation of receiving support from Bialczyk, which the Secretary improperly failed to consider. She maintains that a test which ignores anticipated support for a posthumous illegitimate child ignores the Congressional intent that benefits replace the support the child reasonably could have expected. In Mathews v. Lucas, 427 U.S. 495, 508 and n. 14, 96 S.Ct. 2755, 2763 and n. 14, 49 L.Ed.2d 651 (1976), the Court rejected the argument that the Act was intended to provide support for an insured decedent’s children if they had a legitimate claim to support, without regard to actual dependency at death. It accepted instead the Secretary’s contention that the Act was intended to replace support lost by a child when his or her parent dies. Id. 427 U.S. at 507, 96 S.Ct. at 2763. Actual dependency need not be shown if the child would be entitled to inherit under state laws governing intestate succession of personal property, 42 U.S.C. § 416(h)(2)(A); if the parents went through a marriage ceremony but the marriage is invalid due to a legal impediment, 42 U.S.C. § 416(h)(2)(B); or if the parent, before death, acknowledged in writing that the applicant is his or her child, had been decreed by a court to be the parent, or had been ordered by a court to contribute child support because the applicant was his child. 42 U.S.C. § 416(h)(3)(C)(i). Congress has determined that in such instances, dependency “is objectively probable.” Mathews, 427 U.S. at 509, 96 S.Ct. at 2764. Congress has also apparently determined that dependency is not sufficiently established solely by a" }, { "docid": "23331833", "title": "", "text": "consider whether the alleged aid is commensurate with the needs of the unborn child at the time of the father’s demise. See Schaefer v. Heckler, 792 F.2d 81, 85-87 (7th Cir.1986). Nonetheless, as we noted in Schaefer, “in cases involving children born after or shortly before the wage earner’s death some tangible support is still required ...; a mere expectation of support from the insured wage earner is not enough.” Id., at 86. That conclusion is controlling here. Imani did not show that during the course of their brief relationship Williams was living with her or that he was supporting her. He apparently spent some money on beer and food when they were together, but to say that these expenditures satisfy § 416(h)(3)(C)(ii) means that courtship is tantamount to support, which, in view of the purposes of the Act, see Mathews v. Lucas, 427 U.S. 495, 507, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651 (1976), cannot be correct. Imani and Williams broke off their relationship and never saw each other again because Williams refused to take Imani out on a “regular” date and to pay for their entertainment. There was no statement in the record that he was unable on that occasion to provide the funds; the clear implication was that he simply did not want to. Of course, that the father feels animosity or indifference towards the mother does not necessarily mean that he harbors similar feelings for the unborn child, and he could provide the mother with support that will indirectly benefit the fetus. However, according to Imani’s own testimony, Williams knew that she might be pregnant for two weeks before he died. Still, he did nothing for her, except (perhaps) provide, through a mutual friend, $10 for a pregnancy test. This ambiguous admission by conduct, especially in view of the other evidence in the record, cannot persuade us that the AU was wrong in concluding that Williams, at the time of his death, was not supporting Terrón. Thus, we affirm the finding that the support requirement of § 416(h)(3)(C)(ii) was not met. One issue remains for our" }, { "docid": "18594202", "title": "", "text": "donations once in a while for special purposes, they will not be considered contributions for your support. Although the insured’s contributions must be made on a regular basis, temporary interruptions caused by circumstances beyond the insured person’s control, such as illness or unemployment, will be disregarded unless during this interruption someone else takes over responsibility for supporting you on a permanent basis. 20 C.F.R. § 404.366(a)(2) (1985). Courts have not, however, applied the support requirement of section 416(h)(3)(C)(ii) rigidly in unique circumstances such as are presented by this case. See McNeal v. Schweiker, 711 F.2d 18, 21 (3d Cir.1983); Jones v. Harris, 629 F.2d 334, 336 (4th Cir.1980). At least several courts have recognized that a regular, substantial and continuous support test that is generally applied to situations where both the applicant child and the wage earner (i.e., in this case the father) are living is only of marginal value in cases where the child is born after or shortly before the wage earner’s death. See Doran v. Schweiker, 681 F.2d 605, 608 (9th Cir.1982); Adams v. Weinberger, 521 F.2d 656, 659-60 (2d Cir.1975). Recognizing that, especially early in the pregnancy, the needs of the fetus are primarily met by the mother, these courts have taken an approach which focuses on the level of support provided by the father relative to the actual needs of the child as well as the father’s ability to make contributions. E.g., Adams, 521 F.2d at 660 (the statutory requirements for an award of benefits are met if “the support by the father for the unborn child was commensurate with the needs of the unborn child at the time of the father’s death”). See Do-ran, 681 F.2d 608-09 (adopting test articulated in Adams and also taking “into account the economic circumstances of the child’s father”). Cf. Boyland v. Califano, 633 F.2d 430, 434 (6th Cir.1980) (“The lack of economic well-being or regular income does not eliminate the statutory requirement of ‘contribution.’ However, where the resources of the wage earner are scarce and the contributions to his children important to them, the statutory requirements can be" }, { "docid": "23491357", "title": "", "text": "other class of “spurious” claims which Congress and the Secretary apparently fear is that of claims from children who have no financial interest in their fathers’ deaths but for the possible wind fall benefits which the SSA would bestow upon them. In other words, the Secretary fears an onslaught of claims from children who by no stretch of the imagination could be considered “dependent” or who, in essence, lost nothing from their parents’ deaths. In our case, Devlin Adams lost the measure of support that he could have expected from his father in the future if death had not intervened. Based upon the evidence adduced at the hearing, it is clear that Devlin Adams does not fall within that group of children who had no extra-statutory financial interest in their fathers’ deaths. Since Congress has not placed any specific dollar amount upon the measurement of support, Wagner v. Finch, supra, 413 F.2d at p. 268, our assessment of the appropriate level of support necessary for an illegitimate posthumous child to meet the statutory burden must be guided by common sense and the Congressional desire to benefit all children who have lost the support of insured parents. An unborn child is totally dependent upon its mother for its human needs. Thus, a legal requirement that the father’s support of the unborn child must be “regular” and “continuous” is purposeless. Support for an unborn child cannot be measured on that basis. Such a test would prevent almost all posthumous children from qualifying under 42 U.S.C. Sec. 416(h)(3)(C)(ii), a result clearly not warranted, given the purposes of the insurance provisions of the SSA. Applying the “regular” and “continuous” test to the measure of support given Ms. Adams is improper since the dependency of the mother is not at issue. In determining whether or not the insured, wage earning father was contributing to the support of the illegitimate, posthumous child applicant at the time of the father’s death, a more relevant test is called for. We must ask whether the support by the father for the unborn child was commensurate with the needs of" } ]

[ { "docid": "9804190", "title": "", "text": "and the restrictions to be narrowly tailored to serve that interest. “[T]he First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate state interest, but a compelling one, and that the restriction operates without unnecessarily circumscribing protected expression.” Brown v. Hartlage, 456 U.S. 45, 53, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982); see also First Nat’l Bank v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). There are thus two facets to the analysis when a First Amendment infringement is alleged—the compelling state interest and the breadth or scope of the restriction. Accordingly, it becomes necessary to define the state’s interest in regulating the comments of judicial candidates. Although a state has a deep concern in preserving the integrity of its election process, Eu, 489 U.S. at 231, 109 S.Ct. at 1024, its right to restrict the speech of its candidates for legislative and executive offices does not extend so far as to “ ‘select which issues are worth discussing or debating’ ... in the course of a political campaign.” Brown, 456 U.S. at 60, 102 S.Ct. at 1532. There can be no question, however, that a state has a compelling interest in the integrity of its judiciary. In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court upheld a state statute barring picketing near a courthouse, pointing out that “[a] State may also properly protect the judicial process from being misjudged in the minds of the public.” Id. at 565, 85 S.Ct. at 481. In another case, Justice Stewart said, “There could hardly be a higher governmental interest than a State’s interest in the quality of its judiciary.” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 848, 98 S.Ct. 1535, 1546, 56 L.Ed.2d 1 (1978) (Stewart, J., concurring). Morial v. Judiciary Comm’n, 565 F.2d 295 (5th Cir.1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), presented the question of whether the state’s requirement that a judge resign before campaigning for a non-judicial office was constitutional. The Court of" } ]

[ { "docid": "12602007", "title": "", "text": "of a political party’s causes or candidates. 4. Publicly endorse or speak on behalf of its candidates or platforms. (c) A partisan political office holder who is seeking election or appointment to judicial office or who is a judge-elect may continue to engage in partisan political activities required by his or her present position. (4) Solicitation and Acceptance of Campaign Contributions. A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions. A candidate may, however, establish a committee to solicit and accept lawful campaign contributions. The committee is not prohibited from soliciting and accepting lawful campaign contributions from lawyers. A judge or candidate for judicial office or judge-elect may serve on the committee but should avoid direct involvement with the committee’s fundraising efforts. A judge or candidate for judicial office or judge-elect may appear at his or her own fundraising events. When the committee solicits or accepts a contribution, a judge or candidate for judicial office should also be mindful of the requirements of SCR 60.03 and 60.04(4). Siefert challenges the ban on party membership in SCR 60.06(2)(b)l, the ban on partisan endorsements in SCR 60.06(2)(b)4, and the ban on personal solicitation of campaign contributions in SCR 60.06(4). He does not challenge the ban on “appeal[s] to partisanship and ... partisan activity” in SCR 60.06(2)(a) or the balance of SCR 60.06(2)(b). Nor does he challenge SCR 60.05, which directs judges to conduct their extra-judicial activities in a manner that does not cast doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. II. Discussion A little background on the law surrounding the First Amendment rights of elected judges and judicial candidates is helpful to understanding what follows. In 2002, the Supreme Court decided Republican Party of Minn. v. White (White I), 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). White I struck down a Minnesota canon of judicial conduct that prohibited judges and judicial candidates from announcing their views on disputed legal and political issues. Id. at 788, 122 S.Ct. 2528." }, { "docid": "21599147", "title": "", "text": "be serious defects in the administration of justice in his county. Thus, the state cannot justify the reprimand of Scott, as it could the discipline of an ordinary government employee, on the ground that it was necessary to preserve coworker harmony or office discipline. As the Commission correctly points out, we have recognized that the state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials. In Morial v. Judiciary Comm’n of La., 565 F.2d 295, 305 (5th Cir.1977) (en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), we upheld a state statute requiring judges to resign from the bench before declaring their candidacy for an elective non-judicial office and -explained that the state may regulate the speech of judges in order to preserve the impartiality of the judicial branch: Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial office make inappropriate the kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. We were careful to note, however, that our holding in Morial was a narrow one, turning on the fact that the resign-to-run statute, and restrictions on judicial campaign promises, were fairly limited intrusions into the political speech of elected judges. That is, “Louisiana’s resign-to-run requirement does not burden the plaintiffs right to vote for the candidate of his choice or to make statements regarding his private opinions on public issues outside" }, { "docid": "10510518", "title": "", "text": "restricts no more speech than is necessary. We do not doubt one of the premises of the canon — that party affiliation may not be a reliable indicator of the qualities that make a good judge. Yet “[i]t is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign,” White, 536 U.S. at 782, 122 S.Ct. 2528 (quotation omitted), and it is difficult to see how Kentucky’s speech restriction does not do just that. Informational bans premised on the fear that voters cannot handle the disclosure have a long history of being legislatively tried and judicially struck, whether in the election setting or elsewhere. See, e.g., Brown, 456 U.S. at 60, 102 S.Ct. 1523 (“The State’s fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 773, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Voters often resort to a variety of proxies in selecting judges and other office holders, some good, some bad. And while political identification may be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too-familiar formula of running candidates with familiar or popular last names. In that respect, this informational ban increases the likelihood that one of the least relevant grounds for judicial selection — the fortuity of one’s surname — is all that the voters will have to go on. As the district court correctly con- eluded, this clause violates the First Amendment on its face. B. Solicitation clause. Kentucky prohibits judicial candidates from “solicit[ing] campaign funds,” a restriction that extends to all fundraising by the candidate, including in-person solicitations, group solicitations, telephone calls and letters. Rules of Supreme Court of Kentucky 4.300, Canon 5(B)(2). The clause permits the candidate to establish a committee that may solicit campaign donations, and it permits the committee to disclose to the candidate the names of people who donated to the campaign and those who declined. See id." }, { "docid": "23246150", "title": "", "text": "with in a separate article of the constitution, article IX. Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but inter stitially; the progress through the law of a particular judge’s social and political preferences is, in Mr. Justice Holmes’ words, “confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 531, 61 L.Ed. 1086 (1916) (Holmes, J., dissenting). As one safeguard of the special character of the judicial function, Louisiana’s Code of Judicial Conduct bars candidates for judicial office from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;” La.Code of Judicial Conduct Canon No. 7(B)(c). Candidates for non-judicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for re-election to his judgeship. The state may reasonably conclude that such pledges and promises, though made in the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a judge" }, { "docid": "12936160", "title": "", "text": "endorsing] or, except for the judge or candidate’s opponent, publicly opposing] another candidate for public office.” 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(3). This restriction depends wholly upon the subject matter of the speech for its invocation. Candidates are not barred from talking about other candidates for any purpose other than endorsing or opposing them. “Restricting speech based on its subject matter triggers the same strict scrutiny as does restricting core political speech.” White II, 416 F.3d at 763-64. This is because “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Carey v. Brown, 447 U.S. 455, 462 n. 6, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (quotation omitted). Additionally, the endorsement clause burdens core political speech. As we noted in White II “[A] candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known [and associate with like-minded persons] so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandéis’ observation that in our country public discussion is a political duty, applies with special force to candidates for public office.... [T]he First Amendment simply cannot tolerate [a] restriction upon the freedom of a candidate to speak [or associate] without legislative limit on behalf of his own candidacy.” 416 F.3d at 757 n. 8 (alterations in original) (quoting Buckley, 424 U.S. at 52-54, 96 S.Ct. 612). Thus, the endorsement clause burdens political expression because it impairs a candidate’s ability to vigorously advocate the election of other candidates, associate with like-minded candidates, and, thus, vigorously advocate his or her own campaign. Such a burden on core political speech triggers strict scrutiny. Citizens United, 130 S.Ct. at 898; see also White II, 416 F.3d" }, { "docid": "20648151", "title": "", "text": "a judicial candidate from making pledges or promises of conduct in office “other than the faithful and impartial performance of duties of the office.” Canon 5A(3)(d)(ii) — the so-called “commitments clause” or “commits clause” — prohibits a judicial candidate from making statements that commit or appear to commit a candidate with respect to cases, controversies, or issues that are likely to come before the court. Plaintiffs argue that Canon 5A(3)(d)(i) and (ii) is facially unconstitutional. This Court agrees. In White, the United States Supreme Court struck down Minnesota’s “announce clause” as unconstitutional. 536 U.S. at 788, 122 S.Ct. 2528. That clause provided that a candidate for judicial office, including an incumbent judge, shall not announce his views on disputed legal or political issues. Id. at 769, 122 S.Ct. 2528. Applying strict scrutiny review, the Court found that the clause was not narrowly tailored to reflect the state’s interest in impartiality. Id. 775, 122 S.Ct. 2528. Like the announce clause struck down in White, Canon 5A(3)(d)(i) and (ii) restricts a fundamental First Amendment freedom— speech. As the majority opinion in White stated: [djebate on the qualifications of candidates is at the core of our First Amendment freedoms, not at the edges. The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance. It is simply not the function of Government to select which issues are worth discussing or debating during the course of a political campaign. Id. at 781-82, 122 S.Ct. 2528. Therefore, strict scrutiny analysis must be applied to test the constitutionality of these restrictions. Under the strict-scrutiny test, Defendants have the burden to prove that these restrictions are (1) narrowly tailored and (2) serve a compelling state interest. See Id. at 773,122 S.Ct. 2528. Defendants argue that Canon 5A(3)(d)(i) and (ii) furthers the compelling state interest in “openmindedness” or, stated differently, “in judges having an open mind.” Defendants’ Memorandum in Support of Motion for Summary Judgment at 10. Defendants quote from White, which states that “[t]his quality [openmindedness] in a judge" }, { "docid": "14114574", "title": "", "text": "campaigns, a State may conclude that it has no role in judicial campaigns because of the neutral, decision-making nature of the judicial function. “Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind .... [The judicial candidate] cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result.” Morial v. Judiciary Comm’n, 565 F.2d 295, 305 (5th- Cir.1977). The judicial candidate simply does not have a First Amendment right to promise to abuse his office. See Brown, 456 U.S. at 54-56, 102 S.Ct. 1523 (some kinds of campaign promises “may be declared illegal without constitutional difficulty”); In re Kaiser, 111 Wash.2d 275, 759 P.2d 392, 400 (1988) (holding statements of party affiliation do not refer to subject relevant to judicial qualification and therefore are not protected by First Amendment). Recognizing that the judiciary has a different job to do, Minnesota has provided that its judicial offices are nonpartisan. Minn. Stat. § 204B.06, subd. 6 (1998); Peterson v. Stafford, 490 N.W.2d 418, 420 (Minn.1992). Thus, restrictions on Minnesota judicial candidates’ speech are entirely different from limitations on the speech of candidates for partisan office, such as those in Eu, 489 U.S. at 217, 109 S.Ct. 1013 (striking statute making it misdemeanor for primary candidates to claim endorsement by party). Another important aspect of the restraint in this case is that it does not discriminate in favor of .one viewpoint or other. Minnesota’s restraint of judicial candidates’ First Amendment rights is a straightforward restriction of expression, rather than being incidental to some other type of regulation, such as a content-neutral time, place, or manner restriction, and in one sense, it is not content-neutral because it restricts speech on the basis of subject-matter. In Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), the Supreme Court considered a state law establishing a 100-foot “campaign-free” zone around polling places. Justice Blackmun rejected the assertion that the law was content-neutral: “Whether individuals may exercise their" }, { "docid": "21599146", "title": "", "text": "about matters of merely private interest, but rather as “an informed citizen regarding a matter of great public concern.” Moore, 877 F.2d at 371. We now proceed to determine whether, under the circumstances of this case, Scott’s right to speak is outweighed by the state’s asserted interest in promoting the efficiency and impartiality of its judicial system. C. We begin by noting that the state’s interest in suppressing Scott’s criticisms is much weaker than in the typical public employee situation, as Scott was not, in the traditional sense of that term, a public employee. Unlike the teacher in Pickering, the assistant district attorney in Con-nick, and the firefighter in Moore, Scott was not hired by a governmental employer. Instead, he was an elected official, chosen directly by the voters of his justice precinct, and, at least in ordinary circumstances, removable only by them. As such, it was not unexpected that Scott not only would exercise independent judgment in the cases brought before him but would be willing to speak out against what he perceived to be serious defects in the administration of justice in his county. Thus, the state cannot justify the reprimand of Scott, as it could the discipline of an ordinary government employee, on the ground that it was necessary to preserve coworker harmony or office discipline. As the Commission correctly points out, we have recognized that the state may restrict the speech of elected judges in ways that it may not restrict the speech of other elected officials. In Morial v. Judiciary Comm’n of La., 565 F.2d 295, 305 (5th Cir.1977) (en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), we upheld a state statute requiring judges to resign from the bench before declaring their candidacy for an elective non-judicial office and -explained that the state may regulate the speech of judges in order to preserve the impartiality of the judicial branch: Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial" }, { "docid": "14114614", "title": "", "text": "of Judicial Conduct: Hearing before the Minnesota Supreme Court, No. C7-81-300, at 12-13 (1997). We conclude that the State has justified its differential treatment imposing greater restrictions on a judicial candidate’s partisan political activities than on association with other kinds of organizations. V. We turn next to Wersal’s claim that Canon 5’s “announce” clause, which prohibits judicial candidates from announcing their “views on disputed legal or political issues,” violates his free speech rights because it is not narrowly tailored to achieve any compelling state interest. We have already determined that the interests proffered by the State to justify this restriction are compelling governmental- interests of the highest order, so we proceed to the next step of our inquiry and address whether the restriction is necessary to further these interests. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 1891, 146 L.Ed.2d 865 (2000); see also Brown v. Hartlage, 456 U.S. 45, 53-54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). A. As we have discussed, it is consistent with the essential nature of campaigns for legislative and executive offices for candidates to detail and make promises about the programs that they intend to enact into law and to administer. For judicial officers, however, a State may determine that this mode of campaigning, insofar as it relates to how judges will decide cases, is fundamentally at odds with the judges’ obligation to render impartial decisions based on the law and facts. At the time of the campaign, the candidate simply cannot predict what the facts or arguments in a particular case may be, the precise way in which legal issues will present themselves, or other crucial factors that need be considered before a court issues a final decision. See Berger v. Supreme Court, No. 87-3935, 1988 WL 114792, at *3 (6th Cir. Oct.31, 1988) (“[T]he very purpose of the judicial function makes inappropriate the same kind of particularized pledges and predetermined commitments that mark campaigns for legislative and executive office.”) (internal quotations omitted); Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 227 (7th Cir.1993) (free discussion" }, { "docid": "12936219", "title": "", "text": "partisan politics, and resolve their disputes through alternative means. Although recusals would undoubtably mitigate bias in some instances, they would not — in a climate of pervasive endorsements by judges and judicial candidates— protect Minnesota’s interests in maintaining impartiality and the appearance of impartiality at even a tolerable level. For the forgoing reasons, I would conclude that Minnesota has met its heavy burden in demonstrating that the endorsement clause is narrowly tailored to the state’s compelling interests. In so concluding, I would join what was, before today, the unanimous judgment of state and federal courts affirming the constitutionality of judicial endorsement prohibitions. See Siefert v. Alexander, 608 F.3d 974, 983-84 (7th Cir.2010); In re Matter of William A. Vincent, Jr., 143 N.M. 56, 172 P.3d 605, 606, 608-09 (2007) (upholding a judicial canon that prohibited a judge or judicial candidate from “publicly endorsing] or publicly opposing] a candidate for public office through the news media or in campaign literature” finding that the clause was “narrowly tailored to serve the State’s compelling interest in a judiciary that is both impartial in fact and in appearance”); In re Matter of Ira J. Raab, 100 N.Y.2d 305, 763 N.Y.S.2d 213, 793 N.E.2d 1287, 1292 (2003); Yost v. Stout, No. 06-4122-JAR, slip op. at 12 (D.Kan. Nov. 16, 2008) (upholding endorsement clause because provision “restricts a judge or judicial candidate from publicly endorsing other candidates for public office; it does not restrict speech concerning disputed political issues.”). 2 I turn next to the solicitation clause. Rule 4.1(A)(6) of the Code bars judges and judicial candidates from “personally soliciting] or accepting] campaign contributions other than as authorized by Rules 4.2 and 4.4.” Rule 4.2(B)(3)(a) permits a judge or judicial candidate to “make a general request for campaign contributions when speaking to an audience of 20 or more people.” In addition, Rule 4.2(B)(8)(c) permits a judge or judicial candidate to “personally solicit campaign contributions from members of the judge’s family, from a person with whom the judge has an intimate relationship, or from judges over whom the judge does not exercise supervisory or appellate authority.” However," }, { "docid": "14114573", "title": "", "text": "to know the details of the programs that candidates propose to enact into law and administer. Pledges to follow certain paths are not only expected, but are desirable so that voters may make a choice between proposed agendas that affect the public. By contrast, the judicial system is based on the concept of individualized decisions on challenged conduct and interpretations of law enacted by the other branches of government. Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (3d Cir.1991). Accord Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 228 (7th Cir.1993) (“Judges remain different from legislators and executive officials ... in ways that bear on the strength of the state’s interest in restricting their freedom of speech.”); In re Chmura, 461 Mich. 517, 608 N.W.2d 31, 39-40 (“[T]he differences between judges and other government officials bear on the strength of the state’s interest in restricting political speech.”), cert. denied, — U.S. -, 121 S.Ct. 77, 148 L.Ed.2d 40 (2000). Whereas affiliation with a partisan program is thus at the heart of executive and legislative campaigns, a State may conclude that it has no role in judicial campaigns because of the neutral, decision-making nature of the judicial function. “Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind .... [The judicial candidate] cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result.” Morial v. Judiciary Comm’n, 565 F.2d 295, 305 (5th- Cir.1977). The judicial candidate simply does not have a First Amendment right to promise to abuse his office. See Brown, 456 U.S. at 54-56, 102 S.Ct. 1523 (some kinds of campaign promises “may be declared illegal without constitutional difficulty”); In re Kaiser, 111 Wash.2d 275, 759 P.2d 392, 400 (1988) (holding statements of party affiliation do not refer to subject relevant to judicial qualification and therefore are not protected by First Amendment). Recognizing that the judiciary has a different job to do, Minnesota has provided that its judicial offices are nonpartisan. Minn." }, { "docid": "14114704", "title": "", "text": "of Pa., 944 F.2d 137 (3d Cir.1991) (narrowing construction of \"announce clause”); Weaver v. Bonner, 114 F.Supp.2d 1337 (N.D.Ga.2000) (striking down canon restricting advertising and election speech); Butler v. Alabama Judicial Inquiry Comm’n, 111 F.Supp.2d 1224 (M.D.Ala.2000) (restraining enforcement of campaign advertisement and conduct restrictions); ACLU of Florida v. The Florida Bar, 744 F.Supp. 1094 (N.D.Fla.1990) (enjoining \"announce” canon); In re Chmura, 461 Mich. 517, 608 N.W.2d 31 (narrowing canon to prohibit only knowingly false statements), cert. denied, — U.S. --, 121 S.Ct. 77, 148 L.Ed.2d 40 (2000); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky.1991) (striking down \"announce” and other campaign restrictions). . The court cites Burson where the Supreme Court sustained the prohibition of “the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place.” 504 U.S. at 193, 112 S.Ct. 1846. While not a traditional \"time, place, and manner” restriction in that it was content-specific, the rule curtailed speech only within that 100-foot bubble. Id. at 197, 112 S.Ct. 1846. Against a vast history of election fraud and intimidation at polling places, the Court permitted only an extremely narrow, location-specific restriction on campaign speech. Burson hardly supports the absolute bans imposed by Canon 5. . The court relies in part on Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), in which the Court sustained a ban on fusion- candidates — those appearing on the ballot as representing more than one party. That law governed form of the ballot but did not restrict parties from endorsing the candidate of their choice. This prevented small parties from bootstrapping their way into public election funds by endorsing a major party candidate, and then claiming the resulting votes. As it did not affect candidate or party speech and associational rights, the Court sustained the rule. That case does not support the banning of all election-related discussion and association. . Construing similar language, similarly curtailed, Judge Posner noted: There is almost no legal or political issue that is unlikely to come before a" }, { "docid": "14114675", "title": "", "text": "members’ views about the philosophical and governmental matters that bind them together [and] seeks to convince others to join those members in a practical democratic task,” an election. Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (plurality opinion of Justice Breyer). Limitations on a party’s ability to endorse a candidate “hamper! ] the ability of a party to spread its message.” Eu, 489 U.S. at 223, 109 S.Ct. 1013. “[A] political party has a right to ... select a standard bearer who best represents the party’s ideologies and preferences.” Id. at 224, 109 S.Ct. 1013 (citations and quotations omitted). The suppression of a party’s right to associate with candidates of its choice, renders it powerless. “The Party’s attempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association.” Tashjian, 479 U.S. at 214, 107 S.Ct. 544. Canon 5 trenches upon these rights in a variety of ways. The “announce” clause, for instance, effectively bans campaigning itself. The court disagrees, saying “[t]he judicial candidate simply does not have a First Amendment right to promise to abuse his office.” Ante at 862. But the court proves too much. The Supreme Court established in Brown that no candidate for any office possesses such a right. “[T]he state may ban such illegal agreements without trenching on any right ... protected by the First Amendment.” 456 U.S. at 55, 102 S.Ct. 1523. Beyond prohibiting fraud and corruption, and the appearance of the same, a state may prevent judicial candidates from prejudging or pledging outcomes in specific cases or even in particular types of cases. But beyond such, a state cannot further unreasonably curtail election-related speech. The announce clause, however, bars discussion of all disputed legal and political issues. The court’s narrowing construction to “issues likely to come before the candidate,” ante at 881, is meaningless. See Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 229 (7th Cir.1993) (recognizing the true scope of such a “limitation”). Even could such a" }, { "docid": "14114615", "title": "", "text": "nature of campaigns for legislative and executive offices for candidates to detail and make promises about the programs that they intend to enact into law and to administer. For judicial officers, however, a State may determine that this mode of campaigning, insofar as it relates to how judges will decide cases, is fundamentally at odds with the judges’ obligation to render impartial decisions based on the law and facts. At the time of the campaign, the candidate simply cannot predict what the facts or arguments in a particular case may be, the precise way in which legal issues will present themselves, or other crucial factors that need be considered before a court issues a final decision. See Berger v. Supreme Court, No. 87-3935, 1988 WL 114792, at *3 (6th Cir. Oct.31, 1988) (“[T]he very purpose of the judicial function makes inappropriate the same kind of particularized pledges and predetermined commitments that mark campaigns for legislative and executive office.”) (internal quotations omitted); Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 227 (7th Cir.1993) (free discussion of judicial candidate’s views conflicts with the “historically more deeply rooted” concept of justice under the law); Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (3d Cir.1991) (prejudging cases at campaign stage makes mockery of the concept of an impartial judiciary and undermines public confidence in rule of law). Canon 5’s announce clause restrains candidates from making statements in their campaigns about their views on disputed legal and political issues, and thus prevents candidates from implying how they would decide cases that might come before them as judge. Wersal maintains that this restriction is not necessary because Canon 5 already protects the State’s interests through bans on candidates making pledges or promises of conduct in office other than the faithful performance of their duties and on candidates manifesting bias or prejudice inappropriate to the judicial office. See Canon 5(A)(3)(d)® & (ii). To be sure, the pledges and promises provision of Canon 5(A)(3)(d)® addresses the type of campaign conduct that most blatantly subverts the judicial office— pledges by candidates to make specific decisions on the bench." }, { "docid": "13568485", "title": "", "text": "Amendments, we must determine whether the restriction imposed by section 20 — 2—51 (c)(2) is “severe” based on the “character and magnitude” of Plaintiffs’ asserted harm. In Mortal v. Judiciary Commission of Louisiana, 565 F.2d 295 (5th Cir.1977), the former Fifth Circuit considered whether a Louisiana statute and canon of judicial conduct requiring judges to resign from their current office before running for a non-judicial position comported with the plaintiffs’ rights to free speech and freedom of association under the First Amendment and their right to equal protection of the laws under the Fourteenth Amendment. Id. at 299-307. The Fifth Circuit stated that, although Judge Morial had a “substantial” First Amendment interest in becoming a candidate, “in order to judge the substantiality of the impairment,” that interest must be weighed in light of his interests left unaffected by the Louisiana statute. Id. at 301. The Court noted that Louisiana’s resign-to-run requirement does not burden [Judge Morial’s] right to vote for the candidate of his choice or to make statements regarding his private opinions on public issues outside a campaign context; nor does it penalize his belief in any particular idea. These are core first amendment values. Id.; see also Clements, 457 U.S. at 972, 102 S.Ct. 2836 (no first amendment violation where state constitutional provisions “in no way restrict appellees’ ability to participate in the political campaigns of third parties. They limit neither political contributions nor expenditures. They do not preclude appellees from holding an office in a political party.... [A]ppellees may distribute campaign literature and may make speeches on behalf of a candidate.”) The Fifth Circuit also stated that “[t]he impact of the resign-to-run requirement upon voters is even less substantial,]” as it did not exclude candidates based on their viewpoint, or their membership in an identifiable group, such as the poor or minority parties. Mortal, 565 F.2d at 301-02 (citations omitted). In addressing the level of scrutiny appropriate to review the plaintiffs’ challenge to the Louisiana statute under the First Amendment, the Court stated in Mortal, The impairment of the plaintiffs’ interests in free expression and political association" }, { "docid": "12602021", "title": "", "text": "Endorsement of Partisan Candidates SCR 60.06(2)(b)4 prohibits judges and judicial candidates from “[p]ublicly endorsing] or speak[ing] on behalf’ of any partisan candidate or platform. Judge Siefert argues that, like the choice to identify as a member of the Democratic Party, the choice to endorse another candidate is simply a means of expressing his political views. We disagree. An endorsement is a different form of speech that serves a purpose distinct from the speech at issue in White I and in the party identification rule discussed above. Accordingly, we believe that it should be subject to a distinct analysis. In keeping with a long line of Supreme Court precedent determining the rights of government employees going back to at least Ex Parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882), a balancing approach, not strict scrutiny, is the appropriate method of evaluating the endorsement rule. While the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office,” Citizens United, 130 S.Ct. at 898 (citing Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (internal quotation omitted)); see also White I, 536 U.S. at 774, 122 S.Ct. 2528 (noting that “speech about the qualifications of candidates for public office” is “at the core of our First Amendment freedoms”), a public endorsement does not fit neatly in that category. Endorsements are not simply a mode of announcing a judge’s views on an issue, or a shorthand for that view. In fact, the American Bar Association model code from which, the rule is derived justifies the. restriction on endorsement based on the danger of “abusing the prestige of judicial office to advance the interests of others.” Model Code of Judicial Conduct R. 4.1 cmt. [4] (2007). The Commission identifies its interest in the rule as an attempt to preserve the appearance of impartiality in the judiciary. Appellant’s Br. at 36. While an interest in the impartiality and perceived impartiality of the judiciary does not justify forbidding judges from identifying as members of political" }, { "docid": "16569748", "title": "", "text": "those opinions. Such an implication, defendants posit, would undermine public confidence in the judiciary. While recognizing that the state has a duty to regulate the conduct of the bar and the judiciary, the court understands that defendants’ regulations must be subjected to an increasingly strict level of scrutiny as they move closer to impairing core first amendment values. Morial v. Judiciary Comm’n, 565 F.2d 295 (5th Cir.1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). Where, as here, a regulation goes so far as to restrict speech because of its content, there is a strong presumption that the regulation is unconstitutional. A court must strictly scrutinize such a regulation, requiring the state to bear the burden of showing that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). This court has little trouble concluding that states need not treat candidates for judicial office the same as candidates for other elective offices. As the Fifth Circuit has noted, a state may regulate would-be judges differently, if for no other reason, because the judicial office is different in key respects from other offices. Morial, 565 F.2d at 305. For example: [T]he contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Id. Furthermore, in a contest between lawyers for a judicial office the integrity of which is a matter of significant public concern, a" }, { "docid": "16569747", "title": "", "text": "1287 (11th Cir.1985); Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974). A. Likelihood of Success on the Merits Plaintiffs contend that Canon 7(B)(1)(c) violates their first and fourteenth amendment rights to freedom of speech. They argue that the threat of enforcement has the effect of chilling judicial candidates’ free speech, because the canon— both vague and overbroad—provides no notice as to the nature of the speech which is proscribed. They claim that the canon is not the least restrictive means for achieving the state’s interest—an interest which they contend is not sufficiently compelling to justify the resulting intrusion on expression. Defendants respond that it is difficult to conceive of a more compelling state interest than the maintenance of public confidence in the objectivity of its judiciary. Recognizing that judges determine individual cases based upon facts and the law rather than upon personal convictions, defendants suggest that announcement by a judicial candidate of his views on disputed legal or political issues necessarily implies that the rulings of the candidate, once elected, will be influenced by those opinions. Such an implication, defendants posit, would undermine public confidence in the judiciary. While recognizing that the state has a duty to regulate the conduct of the bar and the judiciary, the court understands that defendants’ regulations must be subjected to an increasingly strict level of scrutiny as they move closer to impairing core first amendment values. Morial v. Judiciary Comm’n, 565 F.2d 295 (5th Cir.1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). Where, as here, a regulation goes so far as to restrict speech because of its content, there is a strong presumption that the regulation is unconstitutional. A court must strictly scrutinize such a regulation, requiring the state to bear the burden of showing that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). This court has little trouble concluding that states need not treat candidates for judicial office the same as candidates" }, { "docid": "12064705", "title": "", "text": "Cir.1977) (en banc), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed. 2d 395 (1978) we examined a Louisiana law which required judges to resign before running for any other political office. We stated that the requisite closeness of the means-end relations must be determined on a case-by-case basis. The standard to be applied in any case is a function of the severity of impairment of first amendment interests. As the burden comes closer to impairing core first amendment values ... or impairs some given first amendment value more substantially, ... the requisite closeness of fit of means and end increases accordingly. Id. 565 F.2d at 300. In Morial, we recognized that the first amendment protects the marketplace of ideas, and that such protection extends not just to the right to speak, but to the right to elect representatives sympathetic to a given group or viewpoint. We therefore held that ballot access restrictions are invalid if their effect is “to exclude candidates of an identifiable group or viewpoint.” Id. 565 F.2d at 302. Applying this standard, we upheld the Louisiana law because, though it affected the rights of certain candidates, it had no impact whatsoever on the rights of any particular group of voters. Similarly, in Plante v. Gonzalez, 575 F.2d 1119 (5th Cir.1978), we stated that ballot access restrictions “are not unconstitutional unless ‘they are so restrictive that they deny a cognizable group a meaningful right to representation.’ ” Id. at 1126 (5th Cir.1978) (quoting Tribe, American Constitutional Law, § 13-19 (1978)). There we examined whether Florida’s sunshine law constituted an unconstitutional restriction. The law required all candidates for office to submit financial disclosure statements as a precondition to candidacy. We held that although such a requirement might place a greater burden on wealthy candidates, it did not exclude them from office. It constituted only a deterrent by way of inconvenience, not a bar to political participation. 4. Application of This Circuit’s Law Thus, this circuit uses a two part analysis. First a group must be cognizable, or identifiable, and second, it must be excluded from meaningful representation." }, { "docid": "9804187", "title": "", "text": "limbo, not only the plaintiff, but other judicial candidates in Pennsylvania, will be left in doubt over the permissible areas of campaign discussion open to them. In the absence of a ruling now, some judicial candidates may be unwilling to risk disciplinary action and, instead, choose to impose unnecessarily rigid self-censorship on matters that are legitimate subjects for discussion and appraisal by the electorate. That development would constitute a harm to the public that could not be remedied by a subsequent court decree. In that respect, this case is unlike Hughes where no real harm resulted from delay. Cf. Frederick L. v. Thomas, 557 F.2d 373 (3d Cir.1977); Moe v. Dinkins, 635 F.2d 1045 (2d Cir.1980). Consequently, we will proceed to the merits. III. Canon 7 provides: “B. Campaign Conduct. (1) A candidate ... for a judicial office (c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.” Pennsylvania Code of Judicial conduct (1974). Speech uttered as part of a campaign for public office directly and unmistakably invokes the protection of the First Amendment. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). Nevertheless, freedom of political discussion is not absolute. The Supreme Court was confronted with a restriction on political speech in United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). There the plaintiff sought to prevent implementation of the Hatch Act’s ban on campaigning by federal employees. The Court held that the right to participate in political activities was not absolute. “Nor are the management, financing, and conduct of political campaigns wholly free from governmental regulation.” Id. at 567, 93 S.Ct. at 2891. The Court commented that “the government has an interest in regulating the conduct and the ‘speech of its employees that differs significantly from those it possesses in connection with" } ]

[ { "docid": "22647672", "title": "", "text": "to the date on which an order to show cause issues. See § 303(a)(3), codified at 8 U.S.C. § 1229b(d)(l) (1999), and § 309(c)(5)(A) of IIRIRA, as amended by NACARA § 203(a)(1). It is undisputed that Castillo met the residency requirement under the old law. The BIA found, however, that he failed to satisfy the new statutory requirement and was therefore unable to establish a prima facie case for the relief that he sought. The BIA concluded that NACARA’s new timing rule applied retroactively and was triggered by a general order to show cause. Because Castillo had been served with an order to show cause approximately three weeks before he would have fulfilled the seven year requirement under the new law, the BIA held that, under its interpretation of IIRIRA and NACARA, he was now ineligible for suspension of deportation and therefore not entitled to have his deportation proceedings reopened. Castillo’s petition for review of this decision constitutes the second part of this combined appeal. Because our decision to grant Castillo’s petition for review is based on the BIA’s dismissal of his motion to remand (not the motion to reopen), and because we conclude that, in light of the violation of Castillo’s constitutional rights that occurred at his hearing, due process requires that he be afforded the benefit of the law that was applicable at the time of that hearing, we decline to exercise our discretion to consider the BIA’s holding that NACARA’s timing rale is triggered by an order to show cause and should generally apply retroactively. STANDARD OF REVIEW The BIA’s denial of a motion to remand is reviewed for abuse of discretion. See Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999). Claims of due process violations in deportation proceedings are reviewed de novo, see Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), as are the BIA’s determination of purely legal questions. See, e.g., Ratnam v. INS, 154 F.3d 990, 994 (9th Cir.1998). ANALYSIS I. Jurisdiction Prior to the passage of IIRIRA, most orders of deportation were subject to direct judicial review. See INA § 106(a)," } ]

[ { "docid": "23316109", "title": "", "text": "GOULD, Circuit Judge. Sergei Zolotukhin, a native and citizen of Russia, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming without opinion the immigration judge’s (IJ) denial of his application for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and voluntary departure. Zolotukhin also raises several due process claims. We have jurisdiction under 8 U.S.C. § 1252(a). The evidence in the record does not compel us to conclude that the BIA erred in denying Zolotukhin asylum, withholding of removal, or CAT relief. Nonetheless, we grant the petition and remand for a new hearing, because Zolo- tukhin’s hearing did not comport with due process. I “The Fifth Amendment guarantees due process in deportation proceedings.” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). “A neutral judge is one of the most basic due process protections.” Castro-Cortez v. INS, 239 F.3d 1037, 1049 (9th Cir.2001). The record shows that the IJ improperly prejudged the petitioner’s case. The IJ stated in the middle of the hearing: “As far as his testimony was that he actually attends the church as often as he does, I don’t believe him. But even if I believed him, he doesn’t have a claim. So, you can move on, or you can ... try to drag this out.” The IJ later stated “[Y]ou’re not really a Pentecostal. You just claim to be a Pentecostal because you don’t want to ... go to the military. That’s the problem I have with your case.” An alien who faces deportation is entitled to a full and fair hearing of the alien’s claims and a reasonable opportunity to present evidence on his or her behalf. See 8 U.S.C. § 1229a(b)(4); Castro-Cortez, 239 F.3d at 1049. The IJ’s pre-judgment of the merits of petitioner’s case led her to deny Zolotukhin a full and fair opportunity to present evidence on his behalf, including that the IJ excluded the testimony of several key witnesses. See Colmenar v. INS, 210 F.3d 967, 971-72 (9th Cir.2000) (holding that, as part of his right to a full and fair hearing, an" }, { "docid": "22688277", "title": "", "text": "(BIA 2002) (holding that a motion to reopen may be granted to provide an alien with the opportunity to pursue an application for an adjustment of status when a five-part test is satisfied). Mrs. De Martinez alleged in her motion to reopen that she is married to a United States citizen. Her husband filed an application on December 11, 1997, requesting immigrant status on her behalf pursuant to 8 U.S.C. § 1154(a) and 8 U.S.C. § 1151(b)(2)(A)(i). In her motion to reopen, Mrs. De Martinez argued that In re Velarde-Pacheco held that such an unapproved visa application provides sufficient grounds to reopen removal proceedings. The BIA denied the motion to reopen because she failed to leave the United States within thirty days of the effective date of its order granting voluntary departure. Mrs. De Martinez filed a timely petition for review. II We have subject matter jurisdiction to hear a petition for review of a decision of the BIA denying a motion to reopen. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003) (holding that the court’s jurisdiction to review denials of motions to reopen was not eliminated by statutory restrictions pertaining to voluntary departure and other discretionary relief); cf. Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir.1997) (holding that the court does not have jurisdiction to review an order denying a motion to reopen where an alien has been convicted of certain crimes). We review the denial of a motion to reopen for abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Pure questions of law raised in a petition to review a decision of the BIA are reviewed de novo. Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999). Mrs. De Martinez contends that the BIA abused its discretion in denying her motion to reopen because she did not receive actual notice of the penalties for failing to depart. She concedes that the BIA’s order was mailed to her attorney. The immigration laws applicable in this matter were revised and reorganized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”)." }, { "docid": "22604577", "title": "", "text": "FISHER, Circuit Judge. Petitioner Kyu Oh (“Oh”) appeals the Board of Immigration Appeals’ (“BIA”) denial of her motion to reconsider its rejection of her notice of appeal of an Immigration Judge’s (“IJ”) decision as being untimely filed. Oh sought to excuse the late filing as having been caused by an overnight delivery service’s failure to deliver the notice until well past the BIA’s 30-day deadline. Noting that in using an overnight delivery service she was following the very procedure the BIA’s own Practice Manual recommended, Oh contends that the BIA abused its discretion and denied her due process in refusing to consider her reasonable excuse. Because the BIA denied Oh’s motion to reconsider on the erroneous assumption that it had no authority to extend the time for appeal, we grant Oh’s petition and remand to the BIA to determine whether her circumstances justify excusing her late filing. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s denial of a motion to reconsider for abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). “ ‘An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.’ ” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (quoting Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995)). Oh, a native and citizen of South Korea, became a lawful permanent resident of the United States when she married a U.S. citizen in 1985; she was divorced in 1989. In 2001, after a six-week stay in Korea, Oh tried to re-enter the United States. She was detained by immigration officials, and admitted she had misdemeanor convictions for prostitution and possession of a controlled substance; she was also arrested on an outstanding warrant for prostitution. The former Immigration and Naturalization Service charged her with being removable; an IJ found her removable on January 10, 2003. That decision triggered a 30-day deadline for Oh to file a notice of appeal with the BIA. See 8 C.F.R. §§ 1003.38(b), (c). On January 24, Oh and her counsel completed the necessary paperwork, and on February" }, { "docid": "22219032", "title": "", "text": "we cannot say that it was arbitrary or unreasonable for the BIA to decline to give her a second chance. Accordingly, we find that the BIA did not abuse its discretion in denying Obioha’s motion to remand. IV. Obioha also suggests that the denial of her motion to remand violated her due process rights. The gatekeeper provision explicitly preserves our jurisdiction to review constitutional claims. See 8 U.S.C. § 1252(a)(2)(D). A claim that the BIA denied an alien due process is reviewed de novo. Rusu v. INS, 296 F.3d 316, 320 (4th Cir.2002). Obioha argues that because no court evaluated her request tor cancellation oí removal as a nonpermanent resident on the merits and because the BIA provided improper grounds for denying her motion to remand, she was denied due process. Obioha, however, did have the opportunity to seek cancellation of removal as a non-permanent resident, which she chose not to pursue. Furthermore, an alien does not have a legal entitlement to discretionary relief. See Smith v. Ashcroft, 295 F.3d 425, 429-30 (4th Cir.2002) (because alien had no legal entitlement to discretionary relief, due process was not violated). Allowing Obioha a second opportunity to seek this relief was solely within the discretion of the BIA, which, as we have already determined, it did not abuse. We therefore cannot say that the BIA’s decision denied Obioha the due process of the law. y. Because Obioha failed to seek cancellation of removal as a nonpermanent resident when she had the opportunity to do so before the IJ, she has failed to show that the BIA either abused its discretion in denying her motion to remand or denied her the due process of law. Accordingly, we deny the petition for review and affirm the BIA’s decision. PETITION FOR REVIEW DENIED AND JUDGMENT AFFIRMED . Cancellation of removal is available to non-permanent residents at the Attorney General’s discretion if the alien (1) has been physically present in the United States continuously for at least ten years; (2) has had good moral character during that time period; (3) has not been convicted of certain enumerated" }, { "docid": "22169731", "title": "", "text": "offense. We REMAND with instructions that the agency engage in a case-specific analysis in determining whether Mr. Afridi’s offense is a particularly serious crime, rendering him ineligible for withholding of removal. We DENY Mr. Afridi’s petition for review of the BIA’s denial of his claim for relief under the Convention Against Torture. We DENY Mr. Afridi’s petition for review insofar as it alleges that the BIA violated his due process rights by failing to exercise due consideration. The petition for review is GRANTED in Part, DENIED in Part and REMANDED With Instructions. . In Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.2006), we held that a violation of Cal.Penal Code § 261.5(c) does not categorically constitute a crime of violence under 8 U.S.C. § 1101(a)(43)(F). Although in Valencia, this Court concluded that the petitioner was not removable as an aggravated felon for having committed a crime of violence, it did not address, and was not asked to address, whether a violation of Cal.Penal Code § 261.5(c) categorically constitutes sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and whether an alien who violates § 261.5 may be removed pursuant to that section. . Mr. Afridi also argues that his conviction should not constitute \"sexual abuse of a minor” because he was not required to register as a sex offender and the offense was later reduced to a misdemeanor. Mr. Afridi cites no legal support for these contentions. The law is to the contrary. See United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir.2005) (holding that a misdemeanor may qualify as an \"aggravated felony” under 8 U.S.C. § 1101(a)(43)(A)); cf. United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir.2002) (explaining that for purposes of sentencing enhancement, an offense classified by state law as a misdemeanor can still be an \"aggravated felony”); Murillo-Espinoza v. INS, 261 F.3d 771, 773-74 (9th Cir.2001) (holding that expungement of a state conviction does not eliminate immigration consequences of that conviction). . 8 U.S.C. § 1231(b)(3)(B) provides: Subparagraph (A) [proving for withholding of removal] does not apply to an alien de-portable under section 1227(a)(4)(D) of" }, { "docid": "19233413", "title": "", "text": "of Mejia Rodriguez’s claim that USCIS erroneously determined that he is statutorily ineligible for TPS. REVERSED AND REMANDED. . The State Department issues B-2 visas to foreign nationals who wish to enter the United States on a temporary basis for pleasure or medical purposes. . Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir.1999). . Although the statute governing TPS refers to the Attorney General as the decisionmaker, the authority to designate countries for inclusion in the TPS program and for adjudicating the eligibility of individual applicants for TPS has been transferred to the Secretary of the Department and the district directors at US-CIS. See 8 U.S.C. § 1103(a); 6 U.S.C. § 271; 8 C.F.R. § 244.2. With the passage of the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, the functions of the former Immigration and Naturalization Service were transferred to the Department and divided, in part, between the Bureau of Immigration and Customs Enforcement (“ICE”) and USCIS. In this opinion, we refer to the decision-making authority of either the Secretary or the USCIS district director. . 8 U.S.C. § 1254a(b)(l)(B)(i). . Id. § 1254a(c); 8 C.F.R. § 244.2. . Id. §§ 1254a(a)(l)(A), (d)(4). . 8 C.F.R. §§ 244.2 and 244.10(b). . Id. § 244.10(c). . Id. §§ 244.10(d) and 244.11. . Convictions that have been vacated due to procedural or substantive defects in the underlying proceedings are no longer valid convictions for immigration purposes. See e.g., Alim v. Gonzales, 446 F.3d 1239, 1248-50 (11th Cir.2006); In re Adamiak, 23 I & N Dec. 878, 879-80, 2006. WL 307908 (BIA Feb. 8, 2006). Mejia Rodriguez obtained orders vacating his convictions from 1988, 1989 and 1992 on constitutional grounds because the trial court failed to advise him of the immigration consequences of his no contest or guilty plea, thereby rendering those convictions invalid for immigration purposes. . Accordingly, Mejia Rodriguez filed a separate petition for review of the AAO’s decision with this Court, which he sought to consolidate with this appeal. The government moved to dismiss the petition for review on the grounds that the AAO's decision" }, { "docid": "22129654", "title": "", "text": "Opinion by Judge GRABER; Concurring Opinion by Judge FERGUSON. OPINION GRABER, Circuit Judge. Petitioner Jose Roberto Ramirez-Castro seeks review of a decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen and found him de-portable pursuant to 8 U.S.C. § 1227(a)(2)(C) by reason of his state-court misdemeanor conviction for carrying a concealed weapon. Petitioner raises a single issue in this appeal: whether an order of a California state court, expunging his conviction after successful completion of probation, eliminates the immigration consequences of that conviction. We conclude that the answer to that question is “no.” Accordingly, we lack jurisdiction and dismiss the petition for review. BACKGROUND Petitioner, a citizen of Honduras, entered the United States in 1978. In 1989, pursuant to 8 U.S.C. § 1255a(b)(l), he became a lawful permanent resident of the United States. Nearly two years later, Petitioner was convicted in the Municipal Court of the State of California, City of Los Angeles, of carrying a concealed weapon, in violation of California Penal Code section 12025(b) (1991). That violation is a misdemeanor. Petitioner was sentenced to 65 days in prison. The Immigration and Naturalization Service issued an order to show cause, charging Petitioner with deportability under 8 U.S.C. § 1251(a)(2)(C) because of his firearms conviction. At the hearing on the show-cause order, Petitioner admitted the allegations in the order to show cause and conceded deportability. Based on Petitioner’s admissions, the immigration judge found Petitioner to be deportable and ordered him deported. Petitioner then appealed to the BIA. On March 5,1993, the California Municipal Court for the City of Los Angeles expunged Petitioner’s conviction pursuant to California Penal Code section 1203.4. As a result, Petitioner filed a motion to reopen with the BIA, seeking to terminate the deportation proceedings. The BIA denied the motion to reopen, reasoning that Petitioner’s conviction remained a conviction for purposes of the Immigration and Nationality Act (INA). Petitioner appealed to this court which, on the government’s motion, remanded the case to the BIA for reconsideration. Ramirez-Castro v. INS, 59 F.3d 176 (9th Cir.1995) (unpublished order). On reconsideration, the BIA again held" }, { "docid": "23561778", "title": "", "text": "a TPS registrant. (g)Has filed an application for late registration with the appropriate Service director within a 60-day period immediately following the expiration or termination of conditions described in paragraph (f)(2) of this section. The regulation governing TPS eligibility closely mirrors the statutory requirements. Castillo-Enriquez reasons that, because his parents are eligible for TPS, he is eligible even though he does not meet subsections (b) and (c). Though 8 C.F.R. § 1244.2(f)(2)(iv) grants an extension of the registration requirement for the children of TPS-eligible aliens, the plain language of the regulation does not — as Castillo-Enriquez contends — make children of TPS-eligible aliens themselves eligible regardless of the continual-presence and continual-residence requirements. Contrary to Castillo-Enriquez’s reading of the regulation, the word “or” at the end of subsection (f)(1) does not mean that an alien is eligible for TPS so long as any of the subsection (f)(2) requirements are met, irrespective of the requirements in subsections (a) through (e) — an argument easily refuted by reading the word “and” at the end of subsection (e). By rejecting Castillo-Enriquez’s interpretation of the TPS regulations, we join the two other circuit courts of appeals that have considered the argument. See De Leon-Ochoa v. Attorney Gen. of the United States, 622 F.3d 341 (3d Cir.2010); Cervantes v. Holder, 597 F.3d 229 (4th Cir.2010). The plain terms of the statute and regulation at issue dictate that Castillo-Enriquez fails to meet the physical-presence and residence requirements and is thus ineligible to receive TPS. Accord ingly, we need not address Castillo-Enriquez’s argument that the BIA incorrectly determined he was not a “child” under the Immigration and Nationality Act. Finally, we agree with the BIA and the Third Circuit that the waiver provisions of 8 U.S.C. § 1254a(c)(2), by their plain terms, apply only to 8 U.S.C. § 1182(a) and not to any requirement for TPS eligibility in § 1254a(c)(l)(A), including the physical-presence and residency requirements. See De Leon-Ochoa, 622 F.3d at 345. Castillo-Enriquez’s motion for stay of deportation is DENIED. The motion for summary denial of the petition for review is GRANTED. The petition for review is" }, { "docid": "19968603", "title": "", "text": "ORDER AND AMENDED OPINION ORDER The majority opinion filed February 14, 2008, slip op. 1369, and appearing at 516 F.3d 777 (9th Cir.2008), is hereby amended as follows: 1.slip op. at 1374, line 3: Replace “and” with “or.” 2. slip op. at 1374, lines 3-5: Replace “If an alien is removed, he is no longer eligible for adjustment of status. See 8 U.S.C. § 1182(a)(9)(A)(ii).” with “If an alien is removed, his adjustment application is deemed abandoned. 8 C.F.R. § 245.2(a)(4)(ii)(A). The alien cannot reapply for adjustment of status until he has reentered the United States, which he is barred from doing for ten years. 8 C.F.R. § 245.1(a); 8 U.S.C. § 1182(a)(9)(A)(ii).” 3. slip op. at 1375: Replace Footnote 5 with the following text: “On remand, the agency may consider Petitioner’s request in light of the Interim Rule as a request for a continuance or a stay of proceedings pending USCIS’s adjudication of Petitioner’s pending marriage petition. See, e.g., Ramirez Sanchez v. Mukasey, 508 F.3d 1254, 1256 (9th Cir.2007).” With these amendments, the panel has voted to DENY the petition for panel rehearing. No future petitions for rehearing shall be entertained. OPINION PER CURIAM: Abraham Kalilu (“Kalilu”), a twenty-seven-year-old native and citizen of Liberia, seeks review of the Board of Immigration Appeals’ (“BIA”) adverse decision determining that he filed a frivolous asylum application, denying his claims for asylum and withholding of removal, denying his request for voluntary departure, and denying his motion to reopen. Petitioner raises two principal challenges to the BIA’s decision. First, he argues that the BIA’s frivolousness determination cannot be sustained because he was not afforded the required procedural safeguards, including notice and an opportunity to respond. Second, he argues that the BIA abused its discretion in denying his motion to reopen so that he could have an opportunity to pursue adjustment of status on the basis of his marriage to a United States citizen. We have jurisdiction over both of these claims pursuant to 8 U.S.C. § 1252, and we grant the petition for review. A. A determination that an applicant filed a frivolous asylum" }, { "docid": "2884198", "title": "", "text": "No. 93-3475, 28 F.3d 1213, 1994 WL 320369, **3 (6th Cir.1994) (unpublished disposition). These eases also are distinguishable, however, because, in each case, the alien had not demonstrated that he was eligible for discretionary relief. Thus, as a matter of law, there was no possibility that prejudice could have resulted from the denial of additional review. In this case, Petitioner was eligible for a discretionary waiver. Cf. United States v. Castro, 26 F.3d 557, 563 (5th Cir.1994) (distinguishing Miranda-Lores on the ground that “Miranda-Lores never alleged any facts that would have supported the discretionary grant of relief’ while, in Castro’s case, no one even considered the option of discretionary relief. “Thus, Castro need not show that he would have received said relief, but only that had such relief been requested, the court would have had the opportunity to exercise its discretion either to grant or to deny it and that there is a reasonable probability that the judge would have granted such relief.”); United States v. Santos-Vanegas, 878 F.2d 247 (8th Cir.1989) (reversing conviction for unlawful reentry) (holding alien satisfied prejudice requirement for collateral attack on deportation order by showing that he might not have been deported if proper standard of review had been applied by BIA). Petitioner here had a right to appeal Immigration Judge Bagley’s decision to the Board of Immigration Appeals, 8 C.F.R. § 3.1(b)(2), and to be represented by counsel on that appeal, 8 U.S.C. § 1362. I therefore find that Petitioner has made a reasonable showing that he would be denied due process if, as a result of Attorney Scheinman’s error, he were to be deported before the BIA had the opportunity to review the merits of Immigration Judge Bagley’s decision. Cf. Gonzalez-Julio v. INS, supra. With this issue resolved, I turn to an examination of Respondent’s denial of a stay of deportation pending the BIA’s decision on Petitioner’s Motion to Reopen. B. Respondent’s Denial of Stay of Deportation Respondent denied two separate requests by Petitioner for a stay of deportation. Respondent’s September 6,1994 denial of a stay contained a lengthy explanation of the basis" }, { "docid": "23599524", "title": "", "text": "BALDOCK, Circuit Judge. Carlos Marquez Garcia seeks judicial review of the denial of his application for temporary protected status, voluntary de parture, and cancellation of removal. A native and citizen of El Salvador, Mr. Marquez entered the United States illegally in 1997 and concedes that he is removable as charged in the Government’s notice to appear. He argues, however, that the Board of Immigration Appeals (BIA) erred in determining that he is ineligible for the discretionary relief he has requested. Exercising our jurisdiction under 8 U.S.C. § 1252(a) and reviewing the BIA’s legal determinations de novo, Herrera-Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir.2009), we deny the petition. In 2003, Mr. Marquez pled guilty to committing third-degree assault in the State of Colorado. The statute under which he was convicted provides in relevant part that the crime of assault in the third degree occurs when a person “knowingly or recklessly causes bodily injury to another person.” Colo.Rev.Stat. § 18-3-204(l)(a). Mr. Marquez’s guilty plea, however, was entered on a poorly translated Spanish form, which failed to specify whether he was pleading guilty to knowingly causing bodily injury or doing so only recklessly. The parties concede that this information cannot be determined from any other conviction documents. As a result, the record is inconclusive as to the mens rea component of Mr. Marquez’s crime, which is a critical factor in determining whether he committed a crime involving moral turpitude (CIMT) and is thus disqualified from receiving discretionary relief. See, e.g., In re Solon, 24 I. & N. Dec. 239, 242 (BIA 2007) (analyzing whether alien’s assault conviction constituted a CIMT for purposes of determining eligibility for relief from removal and noting that “intent [is] a crucial element in determining whether a crime involves moral turpitude”). An alien convicted of a CIMT is considered inadmissible and is therefore not eligible for cancellation of removal or temporary protected status. See 8 U.S.C. §§ 1182(a)(2)(A); 1229b(b)(l)(c); and 1254a(c)(l)(A)(iii). Similarly, voluntary departure is not available to an alien who has not been “a person of good moral character” in the preceding five years. 8 U.S.C." }, { "docid": "22743203", "title": "", "text": "continuance to allow time for the release of new regulations under the Child Status Protection Act (“CSPA”), hoping to assert that Sandoval-Luna was eligible for adjustment of status as a derivative beneficiary of his father’s labor certification application. The CSPA regulations had not been released at the time of the hearing, and the labor certification application had not been processed. The IJ denied the request for a further continuance. After the denial, the IJ entered an oral decision in which he pretermitted Sandoval-Luna’s application for cancellation of removal and granted sixty days for voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion. This petition for review followed. STANDARD OF REVIEW When the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review questions concerning our jurisdiction de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir.2007) (citing An dersen v. United States, 298 F.3d 804, 807 n. 2 (9th Cir.2002)). An IJ’s denial of a motion for continuance is reviewed for an abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004) (citing Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988)). We review de novo claims of equal protection and due process violations in removal proceedings. Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1287 (9th Cir.2004) (citing Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003)) (equal protection); Khup, 376 F.3d at 902 (citing Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc)) (due process). DISCUSSION A. Jurisdiction The government contends that we lack jurisdiction to review the IJ’s discretionary-decision to deny Sandoval-Luna’s motion for a continuance. Under 8 U.S.C. § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review ... any other decision or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General.... ” The government argues that the quoted language strips this court of" }, { "docid": "22758025", "title": "", "text": "year in jail on a suspended sentence of eleven (11) years. At the time, Vargas was approximately sixteen (16) years old. Vargas was also convicted of misdemeanor vandalism in 1996. PROCEDURAL HISTORY The Immigration and Naturalization Service (“INS”) began removal proceedings against Vargas in 2002, alleging that he had been convicted of voluntary manslaughter, an aggravated felony. On July 30, 2002, the IJ sustained the charge of removability against Vargas, and Vargas requested § 212(c) relief. At the beginning of the final hearing on February 12, 2003, Vargas filed a motion to continue to request an opportunity to file for an adjustment of status as the husband of a United States citizen. The IJ denied § 212(c) relief on February 12, 2003, and ordered Vargas deported. Vargas’ wife Sandra filed a petition for alien relative (1-130) on March 9, 2003. Vargas filed his appeal from the IJ’s removal order on August 4, 2003, after receiving an extension of time. Vargas attached an undated application to register for permanent residence or adjust status to his February 9, 2004 motion to remand the removal proceedings for adjustment of status. The BIA denied the motion to remand and dismissed Vargas’ appeal, concluding that the IJ appropriately denied discretionary relief under § 212(c), that Vargas had not shown good cause for any further continuances, and that Vargas failed to demonstrate bias by the IJ. STANDARD OF REVIEW We have jurisdiction over petitions for review that raise colorable constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). This court lacks jurisdiction to review certain orders of removal against criminal aliens. 8 U.S.C. § 1252(a)(2)(C). Questions of law, including due process claims, are reviewed de novo. Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005); Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.2000). Our review is limited to the BIA’s decision and the grounds for the final order of removal affirmed by the BIA. Kelava v. Gonzales, 434 F.3d 1120, 1123 (9th Cir.2006). DISCUSSION I. Vargas argues that because he was sixteen (16) years old when he committed the offense that led to his" }, { "docid": "19656548", "title": "", "text": "BYE, Circuit Judge. On July 6, 2006, United States Citizenship and Immigration Services (“USCIS”) denied Sadou Bah’s application for Temporary Protected Status (“TPS”). 8 U.S.C. § 1254a. Bah thereafter filed this action, seeking a writ of mandamus to compel USCIS to grant him TPS. Upon concluding it did not have jurisdiction, the district court transferred Bah’s action to our Court, pursuant to 28 U.S.C. § 1631. Because we do not have jurisdiction to review Bah’s claims, we dismiss his action as having been improperly transferred. I Bah is a native and citizen of Liberia, who entered the United States in 1990. He first applied for TPS in 1991 and US-CIS approved his application in 1994. Bah reapplied for TPS and was approved many times, for example, in March 1995, April 1996, April 1997, March 1998, and February 2005. On July 15, 2005, USCIS notified Bah it intended to withdraw his TPS approval, and did so on September 13, 2005. Bah appealed to the Administrative Appeals Office (“AAO”), which affirmed the decision. In April 2006, Bah renewed his TPS application, which USCIS denied on July 6, 2006. Bah did not appeal the decision to the AAO. Instead, on August 7, 2006, Bah petitioned the United States District Court for the District of Minnesota for writs of habeas corpus and mandamus to compel reinstatement of his TPS. The district court granted Bah’s writ of habeas corpus, and transferred his request for a writ of mandamus to this Court, pursuant to 28 U.S.C. § 1631. The district court noted Bah’s claims well might be proeedurally barred, but transferred them nonetheless. In the meantime, Bah appealed the Bureau of Immigration Appeals’ (“BIA[’s]”) dismissal of his appeal of an Immigration Judge’s (“IJ[’s]”) denial of his motion to reopen immigration proceedings. On August 9, 2006, we held the BIA erred in dismissing Bah’s appeal and remanded his case to the BIA. Bah v. Gonzales, 457 F.3d 838 (8th Cir.2006). The BIA vacated its earlier decision and remanded the case to the IJ so as to allow Bah to reapply for relief from removal. In re Bah," }, { "docid": "16263408", "title": "", "text": "OPINION ALDISERT, Circuit Judge. In this consolidated appeal, Petitioners Eudulio De Leon-Ochoa, Arely and Elida Rivera-Flores, Eufemia Flores-Dominguez, and R.E. L-P- petition for review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of their applications for Temporary Protected Status (“TPS”) for failure to personally satisfy the statutory requirements of “continuous residence” and “continuous physical presence.” 8 U.S.C. § 1254a. On appeal, Petitioners contend that they fulfill the statutory requirement of “continuous residence,” 8 U.S.C. § 1254a(c)(1)(A)(ii), via imputation of their parents’ residence. Petitioners additionally contend that they satisfy the statutory requirement of “continuous physical presence,” 8 U.S.C. § 1254a(c)(1)(A)(i), because the statutory term “most recent designation” rightfully is read to encompass TPS extensions as well as designations. We disagree on both counts. Because Petitioners fail to meet the requirements of “continuous residence” and “continuous physical .presence,” they are statutorily ineligible for TPS. For the following reasons, we will deny review. I. Temporary Protected Status is authorized by Section 244 of the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1254a. It permits eligible nationals of a foreign state to temporarily remain in and work in the United States while the state is designated by the TPS program. Id. The Attorney General, “after consultation with appropriate agencies of the Government,” may issue a TPS designation with respect to a foreign state under certain circumstances such as ongoing armed conflict, natural disaster, or other conditions preventing safe return of aliens. Id. § 1254a(b)(1). “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Id. § 1254a(b)(5)(A). By statute, aliens are eligible for Temporary Protected Status if they are nationals of a state designated under § 1254a(b)(1) and they meet the following requirements: (i) the alien has been continuously physically present in the United States since the effective date of the most recent designation of that state; (ii) the alien has continuously resided in the United States since such date as the Attorney General may designate; (iii) the alien is" }, { "docid": "22088386", "title": "", "text": "PREGERSON, Circuit Judge: Artur Karapetyan (“Karapetyan”), a native of the Soviet Union and a citizen of Armenia, petitions for review of a final order by the Board of Immigration Appeals (“BIA”) that summarily affirmed the Immigration Judge’s (“IJ”) denial of Kara-petyan’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) (No. 05-75865). Karapetyan also petitions for review of the BIA’s denial of his motion to reconsider its decision (No. 05-77141). We have jurisdiction under 8 U.S.C. § 1252. We grant relief and remand for further proceedings consistent with this opinion. STANDARD OF REVIEW Because the BIA adopted and affirmed the decision of the IJ, this court also reviews the IJ’s decision. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004). We review questions of law de novo, Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004), and factual findings for substantial evidence, Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir.1997). We review the IJ’s decision to deny a request for continuance for abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004); see also Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). We also review a denial of a motion to reconsider for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We will reverse the denial of a motion to reconsider if it is “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (internal quotation marks omitted). PROCEDURAL AND FACTUAL BACKGROUND I. KARAPETYAN’S BACKGROUND Karapetyan is a native of the Soviet Union and a citizen of Armenia. He was admitted as a visitor to the United States on December 25, 2000 and obtained permission to remain until June 24, 2001. He remained in the United States beyond June 24, 2001 without authorization. On February 6, 2002, the Department of Homeland Security (“DHS”) (formerly INS) issued a Notice to Appear, which charged Karapetyan with being present in the United States in violation of 8 U.S.C. § 1227(a)(1)(B). At a master calendar hearing on March" }, { "docid": "22129655", "title": "", "text": "a misdemeanor. Petitioner was sentenced to 65 days in prison. The Immigration and Naturalization Service issued an order to show cause, charging Petitioner with deportability under 8 U.S.C. § 1251(a)(2)(C) because of his firearms conviction. At the hearing on the show-cause order, Petitioner admitted the allegations in the order to show cause and conceded deportability. Based on Petitioner’s admissions, the immigration judge found Petitioner to be deportable and ordered him deported. Petitioner then appealed to the BIA. On March 5,1993, the California Municipal Court for the City of Los Angeles expunged Petitioner’s conviction pursuant to California Penal Code section 1203.4. As a result, Petitioner filed a motion to reopen with the BIA, seeking to terminate the deportation proceedings. The BIA denied the motion to reopen, reasoning that Petitioner’s conviction remained a conviction for purposes of the Immigration and Nationality Act (INA). Petitioner appealed to this court which, on the government’s motion, remanded the case to the BIA for reconsideration. Ramirez-Castro v. INS, 59 F.3d 176 (9th Cir.1995) (unpublished order). On reconsideration, the BIA again held that the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A) encompasses convictions that have been expunged under state law. Consequently, it concluded that Petitioner remained deportable under 8 U.S.C. § 1251(a)(2)(C) and denied Petitioner’s motion to reopen his case. This timely petition for review followed. STANDARD OF REVIEW We review de novo the BIA’s interpretation of the INA. Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). JURISDICTION Because this deportation proceeding was initiated before April 1, 1997, and the BIA’s orders were issued after October 30, 1996, this case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 309(c). Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.1999). IIRIRA § 309(c)(4)(G) provides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section ... 241(a)(2)[ (C) ] ... of the Immigration and Nationality Act.” Consequently, we lack jurisdiction to review Petitioner’s appeal, except to the extent" }, { "docid": "22584707", "title": "", "text": "OPINION PER CURIAM. Okpa Agwu Okpa petitions for review of the decision of the Board of Immigration Appeals (BIA) denying him a waiver of inadmissibility under INA § 212(i), 8 U.S.C. § 1182(i)(l). Okpa claims that the BIA erred in applying retroactively the version of § 212(i) as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In the alternative, he argues that the BIA abused its discretion in not granting him a waiver. The INS argues that we lack jurisdiction over Okpa’s claims. We hold that we have jurisdiction to review Okpa’s retroactivity claim, but not his abuse of discretion claim. On the merits of the retroactivity claim, we hold that the BIA did not err in applying amended § 212(i) to his claim. I. On February 16, 1990, Okpa, a native of Nigeria, entered the United States on a nonimmigrant visitor’s visa, which authorized him to be in this country for two months. Okpa overstayed his visa and remained here illegally. In February 1992 Jason Addo, who was affiliated with the Liberian embassy, approached Okpa with a crooked scheme to remedy Okpa’s unlawful status. Okpa paid Addo $2600 in cash for his promise to help Okpa obtain Temporary Protective Status (TPS) that would be based on a fraudulent application. TPS allows an alien to remain in the United States legally, and this status may be granted to an alien who is a national of a designated country that is experiencing an ongoing armed conflict. See 8 U.S.C. § 1254a(b)(l)(A). Liberia was in the middle of a civil war, and Okpa (following Addo’s advice) filed a TPS application falsely stating that he was a citizen of Liberia. Addo in turn was to submit to the INS documentation from the Liberian embassy showing that Okpa was Liberian. At a June 1992 interview with an INS officer concerning his TPS application, Okpa initially stated that he was Liberian. However, when pressed by the officer, Okpa recanted and admitted that he was from Nigeria. The INS denied his TPS application because he failed to establish Liberian citizenship. In" }, { "docid": "16263444", "title": "", "text": "is more likely than not that he will be tortured upon return to Honduras. Accordingly, we agree with the BIA’s denial of his application for protection under the CAT and will deny the petition for review. * * * * * * For the foregoing reasons, we will deny the petitions for review. . The Board had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) & 1240.15. We have jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). . The Government argues, in the petition for review of Flores-Dominguez, et al., that we should dismiss this case for lack of jurisdiction because the question whether a parent's residency can be imputed for purposes of the TPS program is a nonjusticiable political question. Curiously, the Government does not make this argument in De Leon-Ochoa and L-P-'s petitions for review. We determine that there is no merit to this argument. . Originally the Attorney General was empowered to designate a foreign state for the TPS program. Pursuant to the Homeland Security Act of 2002, the administration of the TPS program was transferred to the Department of Homeland Security. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135; see Cervantes v. Holder, 597 F.3d 229, 231 n. 2 (4th Cir.2010). . Pursuant to 8 U.S.C. § 1254a(c)(4): (4) Treatment of brief, casual, and innocent departures and certain other absences (A) For purposes of paragraphs (1)(A)(i) and (3)(B), an alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences from the United States, without regard to whether such absences were authorized by the Attorney General. (B) For purposes of paragraph (1)(A)(ii), an alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual, and innocent absence described in subparagraph (A) or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. . By brief and at oral argument, Petitioners argue that under Cruz v. Attorney" }, { "docid": "22222979", "title": "", "text": "remand because it concluded that the ex-pungement did not present material new evidence that would have changed the result at the hearing below. The BIA’s rationale was simply that “an alien whose conviction was expunged pursuant to California Penal Code § 1203.4 has been ‘convicted’ for immigration purposes.” The BIA also adopted the IJ’s decision as to Petitioner’s ineligibility for adjustment, and thus dismissed his appeal. Petitioner filed this review petition on June 17, 2005, seeking to overturn the BIA’s May 18, 2005 decision to deny a remand. At the same time, he did not abandon his efforts at the BIA itself, as on June 20, 2005, he moved for reconsideration of the remand denial. This motion was denied, however, as the BIA cited an alternate ground for the denial of remand: that the expungement was irrelevant because Petitioner had already received FFOA treatment in the form of his pre-plea diversion for the 1996 charge, and thus could not receive FFOA treatment a second time for the 1999 conviction. Petitioner has not separately appealed this decision, though the bulk of his briefing is devoted to attacking its rationale. III. JURISDICTION The Immigration and Nationality Act (“INA”) ordinarily divests the courts of appeals of jurisdiction to review any “final order of removal” against an alien who is removable for having committed a controlled substance offense. 8 U.S.C. § 1252(a)(2)(C). The court retains jurisdiction, however, to consider whether the jurisdictional bar applies. Lujan-Armendariz v. INS, 222 F.3d 728, 734 (9th Cir.2000). Moreover, the Act states that “[n]othing [herein] ... which limits or eliminates judicial review shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Here, Petitioner raises a colorable question of law: whether his 1999 controlled substance conviction precludes him from seeking an adjustment of status even though it was expunged pursuant to section 1203.4 of the California Penal Code. In such cases, the jurisdictional inquiry collapses into the merits, and so we may determine whether the expungement means Petitioner has not been “convicted” of a controlled substance" } ]

[ { "docid": "15693237", "title": "", "text": "moved to the desired location for dumping the dirt. Count 2 of the interference differs from count 1 only in that it calls for means for raising and lowering the two body sections relative to the wheels of the vehicle. Quoted count 3 does not call for the front and rear body sections of the vehicle being provided with scraper blades. However, it calls for “instrumentalities for causing relative sliding movement of the frame members longitudinally of the vehicle to impart corresponding relative movement to the body sections, and means for elevating and lowering the said frame members and body sections.” In addition to the elements called for in counts 1 and 2, count 4 calls for “elevating means at each end of said body independently operable at different times to cause movement of said scraper blades into position to perform a scraping action.” Count 6, so far as the issues here are concerned, is substantially the same as quoted count 5. It appears from the record that appellant Anderson filed an application (No. 338,796) for patent on June 4, 1940, in which he disclosed the invention defined by the counts in issue. That application became abandoned September 21, 1941, because of appellant’s failure to reply to an official action by the Primary Examiner. Thereafter, on October 14, 1941, appellant filed his application involved in this interference. The two applications were not co-pending. Accordingly, appellant is entitled to the filing date of his original application for conception of the invention, but is not entitled to that date for constructive reduction to practice. It further appears from the record that appellee filed an application (No. 304,541) for patent November 15, 1939, and that that application became abandoned but not until after appellee filed his application here involved. In the ex parte prosecution of appellee’s earlier application, the Primary Examiner rejected, although not finally, all of the claims on the ground of insufficiency of the disclosure in that application, the examiner stating that the device of the type ' there involved required “suitable transmission, clutches, differential, control apparatus, etc., in order to" } ]

[ { "docid": "23422618", "title": "", "text": "and Patent Appeals from the decision of the Board of Interference Examiners, rendered on or about the 28th day of May, 1948, awarding ■priority of counts 2 and 3 of the invention to Frank W. Knowles * * [Italics added.] This then is Field’s appeal— from the decision of the board awarding priority of invention on counts 2 and 3 to Knowles. It is this appeal for which he must set forth his specific reasons of appeal. The fourteen “reasons of appeal” directed to the board’s findings.relating to count 1 which Field included among the 47 reasons of appeal set forth in his Notice of Appeal must be overruled as pertaining not only to a part of the board’s decision from 'which, no appeal was taken, but also as pertaining to a count on which the appellant has been awarded priority by the board. No decision of the court on the matters touched by those fourteen reasons of appeal could possibly change that award of priority. As said by the court in Harris v. Henry, 20 C. C. P. A. (Patents) 883, 887, 63 F. (2d) 120, 122, 16 U. S. Pat. Q. 442, 445, “unless the question of priority be involved, this court would have no jurisdiction to entertain the appeal, since, in an interference proceeding, priority is our sole concern.” The appellee Knowles having taken no appeal from the award of priority of invention of the subject matter of count 1 to Field, that decision is final and incontestable between the parties. \"The court is without power to affect that decision, and will not do the useless thing now of considering the board’s grounds for its decision on an issue which is moot. Shellaberger v. Schnabel, 10 App. D. C. 145. The decision of the Board of Interference Examiners awarding priority of invention on counts 2 and 3 in Interference No. 80,398 to Knowles is affirmed. Interference No. 81,217. P. A. 5693 The subject matter of this interference is required by the counts to be comprise of a rotating evaporator drum; a flexible belt larger than and encompassing" }, { "docid": "23422575", "title": "", "text": "the end pulleys. The Knowles device comprises a closed revolvable metallic drum into which refrigerant is fed and removed; an endless metal belt placed around the drum in contact with it; a roll positioned a short distance from the surface of the drum, the belt passing over the roll and being held against the greater surface of the drum by the tension received from the roll riding against its inner surface; an additional roll which rides above the first roll but against the outside surface of the belt at the point where the belt urged outward by the inner roller leaves the drum. In this device, the belt lying against the greater part of the drum’s surface in heat transfer relationship is turned by friction as the drum revolves. The belt, according to the Knowles application, is made to “track” by “crowning” the drum, roll, or both; by “placing a straight sided bead on the edge of the drum along the edge of the belt,” or by “securing to the underside of the belt adjacent to the drum V-shaped guides.” Anti-freeze liquid is used betweeen the drum and the belt. Rubber skirts are attached to the edges of the belt and connect to end closure plates sleeved upon the shaft or journal arrangement around which the drum revolves. As the belt revolves, the rubber skirts attached thereto cause the end plates to which they are attached to revolve, effecting a seal of the interior of the apparatus from the atmosphere. Below the drum is a pan filled with water. The drum is positioned so that its lower portion is immersed in the water. As the drum revolves, water adheres to the surface of the belt, freezes upon the belt as it passes over the top of the drum, and the ice is flexed off the belt as it passes under the outside or “breaking” roll and over the inner, outwardly-urging roll. Other arrangements are described, one in which there is no roller within the belt, but three rollers riding against the outside surface of the belt; one of which is" }, { "docid": "23422571", "title": "", "text": "an endless, flexible, movable belt held against that surface by means of a roller urged against the inner surface of the belt, flexing the belt; means for supplying water to be frozen to the belt; and anti-freeze liquid between the belt and evaporator. Count 2 adds means for closing the open sides of the belt. The belt is not required to be movable with relation to the evaporator. Count 3 requires the end closure means to include an apron extending from the belt coacting with the closure means to perfect the seal. In Field case A (352,709) the metal belt travels over two spaced pulleys and slides over the convex curved surface of a stationary evaporator. Between the evaporator and the belt, an anti-freeze fluid augments the heat transfer relationship between the evaporator and belt as well as diminishes the sliding friction between the surfaces. Liquid to be frozen is spread upon tbe moving belt as it slides over the evaporator. As the belt passes around the end pulley, the ice is peeled off as the belt makes the sharp turn around the pulley. • In Field case B (352,708) the evaporator is cylindrical. The metal belt passes around the cylinder and is held in contact with a greater portion of its circumferential surface area by means of twin rollers spaced apart from the cylinder and positioned within the encompassing belt so as to contact its inner surface at each end. The rollers are urged against the under surface of the belt at its ends, tension-ing the belt around the cylinder. The rollers are mounted on supporting arms keyed to a hub at each side of the drum. These deflector rollers revolve about the axis of the shaft mounting the hubs of their supporting arms, moving first in one direction, then in the opposite direction. The surface of the belt under which the rollers pass is flexed, dislodging the ice which has frozen there. Anti-freeze fluid is introduced between the belt and the cylinder to improve the heat transfer relationship and to lubricate those surfaces. Rubber aprons are attached to" }, { "docid": "23422565", "title": "", "text": "JOHNSON, Judge, delivered the opinion of the court: On August 28,1942, an interference, No. 80,398, was declared by the Primary Examiner in the United States Patent Office between the patent applications of Crosby Field, No. 352,709, filed August 15,1940, and Frank W. Knowles, No. 262,869, filed March 20,1939. The single count of the interference related to Field’s claim 41 and Knowles’s claim 50 which the parties had added to their applications at the suggestion of the examiner for interference purposes. On February 12, 1943, Knowles moved to dissolve the interference alleging inopera-tiveness of the Field device. Additionally, Knowles considered the count broader than his invention, and did not believe Field could make a claim reciting a limitation, not present in the count, which Knowles believed essential to operativeness; as a consequence of which Knowles was “cancelling the claim” from his application, and moved for dissolution of the interference, stating that his action was not a concession of priority to Field, as to their respective materials. Field’s assignee on February 27, 1943, moved to amend the issue in Interference No. 80,398 by adding counts drawn from Field’s applications Nos. 352,707, 352,708, and a joint application of Field and Stover, No. 352,710, as well as moving to dissolve the interference on the ground that Knowles’s disclosure was inoperative. On September 21, 1943, the Primary Examiner ruled on the motions of the parties, denying the respective motions to dissolve, and granting the motion of Field’s assignee to bring into the interference the additional applications of Field and Field and Stover as to certain of the proposed counts. On November 17, 1943, the Primary Examiner added to Interference No. 80,398 the Field applications Nos. 352,707 and 352,708. Field thus had three applications in interference with the Knowles application with the relationship of the interference counts and claims of the applications being as follows: Field Case A Field Case B Field Case B Knowles Counts (852,709) (852,708) (852,707) (262,869) 1 41 _ _ 50 2 _ 22 _ 51 3 _ _ 38 52 Also on November 17, 1948, the Primary Examiner declared Interference No." }, { "docid": "23422623", "title": "", "text": "disposed and driven by a shaft. The drum is encompassed by an endless flexible belt, larger in diameter than the drum. Deflecting rollers at each end of the drum mounted on supporting arms sleeved to the drum drive shaft and connected by a shaft extending between the rollers, are positioned between belt and drum, tensioning the belt into contact with the drum surface. The evaporator drum rotates, driving the belt by friction and flexing it' over the deflecting rollers. The position of the deflecting rollers is maintained constant by counterweights. The edges of the flexible metal belt are connected by means of rubber aprons to rotatably mounted end “bells” or plates of a diameter approximating that of the endless metal belt. The end closure “bells” seal off the interior of the apparatus from the atmosphere. Propylene gycol is used between the drum and belt surfaces as a heat transfer medium and lubricant. The drum is positioned partially within a vessel to be filled with water so that water is fed to the surface of the belt as the drum rotates, freezing as the belt travels over the top of the drum, and flexing off as ice as the belt passes over the upwardly projecting deflecting rollers. Appellants contend that conception of the subject matter of counts' 1, 2, and 3 “culminated” on September 15, 1938, in a sketch accom-' panied with a description (Exhibit F-32) made by Stover of an evaporator drum with refrigerant inlet and outlet pipes entering the interior of the rotatable drum through the center shaft. The drum is depicted as bound at both ends to end bells or plates joined to the drum shaft by a threaded union as well as by integrating pins. Field testified that as the end bells rotate “they carry with them the drum.” Stover testified that the sketch and description disclosed a device which was the result of the joint endeavor of himself and Field. Appellants had no rotating evaporator available when Stover made his sketch (Exhibit F-32), and Stover testified that the York Ice Machinery Corporation “had to develop the" }, { "docid": "17588722", "title": "", "text": "RICH, Judge. This appeal is from the decision 'of the Patent and Trademark Office (PTO) Board of Appeals affirming the final rejection of claims 1-43, all the claims in application serial No. 96,285, filed December 8, 1970, entitled “Drying Method.” The appeal on claims 3, 5, 36, and 39 has been withdrawn, and as to these claims it is, therefore, dismissed. As to the remaining claims, we affirm in part and reverse in part. The Invention Appellants’ invention centers around a process for making freeze-dried instant coffee. Claims 1, 6, 30, and 40 are illustrative: 1. An improved process for minimizing loss of volatiles during freeze-drying of coffee extract which comprises obtaining coffee extract, concentrating said extract to a higher solids level of at least 35%, foaming said concentrated extract to a substantial overrun by injection of a gas into said extract at at least atmospheric pressure to thereby avoid evaporative cooling due to evaporation of water in said extract during said foaming, freezing said foam to below its eutectic point at at least atmospheric pressure while avoiding evaporative cooling, and freeze-drying said extract at below the eutectic temperature of said extract. 6. Process for preparing a powdered coffee extract, which comprises adding sufficient inert gas to a concentrated aqueous extract of roast coffee containing about 25% to 60% by weight of soluble coffee solids to provide a foam having a density between about 0:4 and 0.8 gm/cc, freezing the foamed extract to a solid mass, grinding the frozen foam to a particle size of at least 0.25 mm and freeze drying the ground frozen foam. 30. An apparatus for carrying out the process defined in claim 6 comprising, in combination, means for foaming, a closed chamber capable of being maintained at a temperature which is substantially below the melting temperature of said frozen foam, and, disposed within said chamber, a movable endless belt, means for moving said belt at a low speed, a spreading device for distributing coffee extract foam on said belt and refrigerating means for cooling at least one surface of said belt with a liquid refrigerant." }, { "docid": "23422570", "title": "", "text": "evaporator having a continuous curved refrigerated surface, an endless flexible belt encompassing said refrigerated surface and contacting a portion thereof, means closing the open sides of said endless belt, deflector means adapted to flex successive sections of said belt out of contact with said evaporator, and a liquid positioned between said belt and said refrigerated surface adapted to keep wet the contacting surfaces thereof. 3. In refrigerating apparatus, in combination, a framework, a refrigerated member mounted on said framework and having a rigid convexly curved refrigerated surface, an endless flexible metal belt encompassing said refrigerated member and having a greater periphery than said member, means for tensioning said belt against said convexly curved refrigerated surface, means for imparting relative movement between said belt and said surface, and sealing means including an apron extending from said belt and including means extending from said framework, said apron and last-named means coacting to seal the space between said belt and said refrigerated surface from the atmosphere. Count 1 requires an apparatus, with a curved evaporator with, refrigerated surface; an endless, flexible, movable belt held against that surface by means of a roller urged against the inner surface of the belt, flexing the belt; means for supplying water to be frozen to the belt; and anti-freeze liquid between the belt and evaporator. Count 2 adds means for closing the open sides of the belt. The belt is not required to be movable with relation to the evaporator. Count 3 requires the end closure means to include an apron extending from the belt coacting with the closure means to perfect the seal. In Field case A (352,709) the metal belt travels over two spaced pulleys and slides over the convex curved surface of a stationary evaporator. Between the evaporator and the belt, an anti-freeze fluid augments the heat transfer relationship between the evaporator and belt as well as diminishes the sliding friction between the surfaces. Liquid to be frozen is spread upon tbe moving belt as it slides over the evaporator. As the belt passes around the end pulley, the ice is peeled off as" }, { "docid": "23422620", "title": "", "text": "the drum; means for tensioning the belt around-the drum ;• and means for closing the ends of the belt. The counts read as follows: 1. In a heat transfer device: a heat transfer drum; an endless imperforate: belt, said belt being longer than the circumference of said drum, and being, placed around and in contact with said drum; means for tensioning said belt around said drum; means for rotating said drum and driving said belt; end means closing the end openings of said belt for forming therewith a closed chamber ; and a liquid in said chamber and in contact with said belt and drum, which liquid will remain liquid at the operating temperature in the device. 2. In a refrigeration device: a rotatable heat transfer drum; and endless im-perforate belt, said belt being longer than the circumference of said drum, being placed around and in contact with said drum, and being movable with said drum; end means closing the end openings of said belt; and means for refrigerating said -drum by evaporation therein of a refrigerant. 3. In a heat transfer device: a heat transfer drum; supporting trunnions for said drum; means for supplying to and removing from said drum through one of said trunnions a heat exchange medium; an endless imperforate belt, said belt being longer than the circumference of said drum, and being placed around and in c'ontact with said drum; end plates mounted on said trunnions and opposed to the ends of said drum; a stretchable medium secured between and to the edges of said end plates and belt; said trunnion, stretchable medium, and end- plates closing the end openings of said belt for forming with said belt a closed chamber; a tensioning roll placed inside of said chamber, and outside of and parallel to said drum; means supporting said roll on said trunnions and in contact with said belt for tensioning- said belt; and means for rotating said drum by rotating one of said trunnions. Knowles relies on tlie same apparatus and activities considered in the companion interference. Field and Stover attack the operativeness of" }, { "docid": "16931355", "title": "", "text": "Hatfield, Judge, delivered the opinion of the court: This is an, appeal from the decision of the Board of Appeals of' the United States Patent Office affirming the decision of the Examiner of Interferences awarding priority of invention to appellee. The interference is between appellants’ application No. 529,616,. filed April 13, 1931, and appellee’s application No. 394,011, filed September 20, 1929. The subject matter in issue, as defined in the counts in the interference — Nos. 1 to 4, inclusive, comprises a method and an apparatus for absorbing and cooling the absorbing liquid in a continuous. absorption refrigerating apparatus, and an absorber in combination with an evaporator for such refrigerating apparatus. Counts 1, 3, and 4 are illustrative. They read: 1. In absorption refrigerating apparatus, an absorber comprising a main vessel, means for conveying refrigerant gas to be absorbed to said vessel, means for bringing absorption liquid into contact with said gas at a plurality of sue-•cessive stages and means for conveying said liquid to points outside of said vessel in between tbe stages and there cooling tbe same. 3. Tbe method of causing the absorption of a gas, as a refrigerant gas, in a liquid which includes the steps of successively bringing the liquid into contact with the gas to cause the liquid to absorb some of the gas to form a solution, ■ conveying the solution into heat exchange relation with a cooling medium and again bringing it into contact with the gas to form a stronger solution while ■preventing the stronger solution from mixing with the first formed solution. 4. In absorption refrigerating apparatus the combination of an evaporator wherein a refrigerant may evaporate in the presence of an inert gas, an absorber, means for circulating the inert gas between the evaporator and absorber to convey the refrigerant gas from the evaporator to the absorber, means for bringing absorption liquid into contact with the gases in the absorber and means for convey-ing the liquid out of the presence of the gases in the absorber, cooling it and again 'bringing it into the presence of the gases in" }, { "docid": "23422568", "title": "", "text": "that case before us. The appellants’ applications in interference were filed August 15, 1940. The appellee’s application was filed March 20, 1939. Appellee having filed his application first, the presumption arises that he is the first inventor, Gallagher v. Hien, 25 App. D. C. 77, and the burden is thus on the appellants as junior parties to establish priority of invention by a preponderance of the evidence, Anderson v. Walch, 33 C. C. P. A. (Patents) 774, 152 F. (2d) 975, 68 USPQ 215. Interference No. 80,398, P. A. 5692. As will appear from the counts, the subject matter involved is refrigerating apparatus wherein liquid frozen on the surface of a flexible metal belt passing over a refrigerated surface is removed therefrom by a flexing of the belt by means provided therefor in the apparatus. The counts of Interference No. 80,398 read as follows: 1. An ice making apparatus comprising an evaporator forming part of a closed refrigerating system and Laving a refrigerating surface of constant curvature; an endless flexible belt of beat conducting material; means maintaining a portion of said belt in close proximity to a major portion of said refrigerating surface and causing said portion of the belt to conform in curvature to said surface, said means including an element spaced from said refrigerating surface and presenting- a curved surface in contact with the inner surface of the belt; and means for applying water to be frozen to the exterior of the belt; said belt being movable relative to said surfaces and said apparatus being constructed and arranged to hold a quantity of liquid having a freezing point below the lowest temperature to be reached by the operation of said apparatus and to cause the relative movement of the belt with respect to the refrigerating surface to interpose a portion of said liquid in the form of a film between the latter and the portion of the belt conforming thereto in curvature an,d to flex the belt across the second mentioned curved surface to break a layer of ice frozen thereto. 2. In refrigerating apparatus, in combination an" }, { "docid": "23422569", "title": "", "text": "means maintaining a portion of said belt in close proximity to a major portion of said refrigerating surface and causing said portion of the belt to conform in curvature to said surface, said means including an element spaced from said refrigerating surface and presenting- a curved surface in contact with the inner surface of the belt; and means for applying water to be frozen to the exterior of the belt; said belt being movable relative to said surfaces and said apparatus being constructed and arranged to hold a quantity of liquid having a freezing point below the lowest temperature to be reached by the operation of said apparatus and to cause the relative movement of the belt with respect to the refrigerating surface to interpose a portion of said liquid in the form of a film between the latter and the portion of the belt conforming thereto in curvature an,d to flex the belt across the second mentioned curved surface to break a layer of ice frozen thereto. 2. In refrigerating apparatus, in combination an evaporator having a continuous curved refrigerated surface, an endless flexible belt encompassing said refrigerated surface and contacting a portion thereof, means closing the open sides of said endless belt, deflector means adapted to flex successive sections of said belt out of contact with said evaporator, and a liquid positioned between said belt and said refrigerated surface adapted to keep wet the contacting surfaces thereof. 3. In refrigerating apparatus, in combination, a framework, a refrigerated member mounted on said framework and having a rigid convexly curved refrigerated surface, an endless flexible metal belt encompassing said refrigerated member and having a greater periphery than said member, means for tensioning said belt against said convexly curved refrigerated surface, means for imparting relative movement between said belt and said surface, and sealing means including an apron extending from said belt and including means extending from said framework, said apron and last-named means coacting to seal the space between said belt and said refrigerated surface from the atmosphere. Count 1 requires an apparatus, with a curved evaporator with, refrigerated surface;" }, { "docid": "23422596", "title": "", "text": "work on the first Knowles closed end machine was completed and the machine in operation in October 1938; that the machine was operated intermittently until January 1, 1939'; that it was operated “until we got a stock of ice high enough that we had to get rid of it somewhere”; that “lots of times we would operate until the stock on the floor was so high that we had to stop the machine and get rid of the ice”; that “considerable” ice was made before December 1938. It sufficiently appears from the record that the closed end machine described by the foregoing witnesses conforms to the terms of counts 2 and 3. Field contends that Knowles’s disclosure is inoperative because in actual operation the Knowles machine “destroyed” the flexible belt. That destruction resulted, Field contends, because of “fatal defects” in the machine: failure of the belt to “track” on the rotating drum; crinkling of the belt resulting from the flexing of the belt by the deflector roller and the driving of the rotatable end closure plates by the apron connecting the plates and the belt; the “overhang” of the belt with respect to the evaporator drum and the deflector roller, which, when coupled with the “drag” of the apron connected to and “driving” the revolvable end closure plates tended to bend the edges of the belt as well as pull the rubber apron itself loose from its connection to the belt. Field and certain of his witnesses when shown the Knowles application drawings predicted that belt failure would result in the manner in which the evidence of Knowles’s experiments later revealed they actually did occur. Field appears to be a pioneer in' the flexible heat transfer surface art, beginning his work in that field in 1919, and be•ing “intimately connected” with its development since that time. Field’s witness Lachmann, who testified as to the theoretical inopera-tiveness of the Knowles disclosure, had fourteen years experience in that line. Those men are experts in the art of utilizing flexible belts in ice making. While Knowles was apparently well qualified in the refrigeration" }, { "docid": "6749019", "title": "", "text": "WORLEY, Judge. This is an appeal in an interference proceeding from -a decision of the Board of Interference Examiners awarding priority of invention of the subject matter of the single count to appellee. The application of appellants, Serial No. 736,492, for “Windshield Cleaner” was filed March 22, 1947. The application of appellee with the same title, Serial No. 634,730, was filed December 13, 1945. In response to a request by the Primary Examiner for a more specific title, appellee changed his title to “Windshield Wiper Blade Linkage Assembly.” Appellants, being the junior party, have the burden of establishing priority of invention by a preponderance of evidence. Testimony was taken on behalf of appellants. Appellee took no testimony. Both parties filed briefs and were represented at the final hearing. The involved subject matter relates to windshield cleaners or wipers particularly adapted for the wiping of curved and flat surfaces, as may be readily ascertained by a reading of the count which is a claim drawn by the Primary Examiner who suggested it for adoption by both parties and which reads as follows: “A wiper for cleaning a curved surface, comprising an elongated blade flexible for conforming to the surface curvature, the blade having an elongated flexible backing strip, a primary yoke extending lengthwise of the strip and having an arm attaching portion, and secondary yokes, one secondary yoke connected intermediate its ends to an end of the primary yoke and having its opposite ends connected to the backing strip at longitudinally spaced points, and another secondary yoke connected intermediate its ends to the opposite end of the primary yoke .and having its opposite ends connected to the backing strip at longitudinally spaced points.” The motion period closed on January 8, 1949, but on February 25, 1949, the assignee of appellants, the Trico Products Corporation, filed a motion requesting an addition to the interference of the sole application of Scinta, Serial No. 636,548, dated December 22, 1945. Accompanying that motion was an affidavit by counsel for the purpose of excusing delay in filing. The motion was set for hearing before the Primary" }, { "docid": "23422622", "title": "", "text": "the Knowles disclosure in the same manner as there discussed. For the reasons developed at length in Interference No. 80,398, P. A. 5692, we concur in the board’s finding- that Knowles is entitled to his filing date, March 20, 1939, for his date of invention of the subject matter of this interference, the counts of which read upon the closed end machine disclosed in Knowles’s application. Likewise, the contention of Field and Stover that Knowles’s disclosure is inoperative is overruled for the reasons stated with respect to Field’s similar contention in the companion interference. Appellants alleged in their preliminary statement conception of the subject matter of the counts on February 12, 1938, with reduction to practice in March 1940, which, being subsequent to Knowles’s filing date, placed appellants under the burden of proving conception prior to Knowles’s filing date and reasonable diligence down to their subsequent reduction to practice, actual or constructive. The Knowles disclosure is described in the companion interference. The application of Field and Stover, No. 352,710, discloses a cylindrical evaporator drum, horizontally disposed and driven by a shaft. The drum is encompassed by an endless flexible belt, larger in diameter than the drum. Deflecting rollers at each end of the drum mounted on supporting arms sleeved to the drum drive shaft and connected by a shaft extending between the rollers, are positioned between belt and drum, tensioning the belt into contact with the drum surface. The evaporator drum rotates, driving the belt by friction and flexing it' over the deflecting rollers. The position of the deflecting rollers is maintained constant by counterweights. The edges of the flexible metal belt are connected by means of rubber aprons to rotatably mounted end “bells” or plates of a diameter approximating that of the endless metal belt. The end closure “bells” seal off the interior of the apparatus from the atmosphere. Propylene gycol is used between the drum and belt surfaces as a heat transfer medium and lubricant. The drum is positioned partially within a vessel to be filled with water so that water is fed to the surface of the" }, { "docid": "23422621", "title": "", "text": "a refrigerant. 3. In a heat transfer device: a heat transfer drum; supporting trunnions for said drum; means for supplying to and removing from said drum through one of said trunnions a heat exchange medium; an endless imperforate belt, said belt being longer than the circumference of said drum, and being placed around and in c'ontact with said drum; end plates mounted on said trunnions and opposed to the ends of said drum; a stretchable medium secured between and to the edges of said end plates and belt; said trunnion, stretchable medium, and end- plates closing the end openings of said belt for forming with said belt a closed chamber; a tensioning roll placed inside of said chamber, and outside of and parallel to said drum; means supporting said roll on said trunnions and in contact with said belt for tensioning- said belt; and means for rotating said drum by rotating one of said trunnions. Knowles relies on tlie same apparatus and activities considered in the companion interference. Field and Stover attack the operativeness of the Knowles disclosure in the same manner as there discussed. For the reasons developed at length in Interference No. 80,398, P. A. 5692, we concur in the board’s finding- that Knowles is entitled to his filing date, March 20, 1939, for his date of invention of the subject matter of this interference, the counts of which read upon the closed end machine disclosed in Knowles’s application. Likewise, the contention of Field and Stover that Knowles’s disclosure is inoperative is overruled for the reasons stated with respect to Field’s similar contention in the companion interference. Appellants alleged in their preliminary statement conception of the subject matter of the counts on February 12, 1938, with reduction to practice in March 1940, which, being subsequent to Knowles’s filing date, placed appellants under the burden of proving conception prior to Knowles’s filing date and reasonable diligence down to their subsequent reduction to practice, actual or constructive. The Knowles disclosure is described in the companion interference. The application of Field and Stover, No. 352,710, discloses a cylindrical evaporator drum, horizontally" }, { "docid": "20335637", "title": "", "text": "Worley, Judge, delivered the opinion of the court: This is an appeal in an interference proceeding from a decision of the Board of Interference Examiners awarding priority of invention of the subject matter of the single count to appellee. The application of appellants, Serial No. 736,492, for “Windshield Cleaner” was filed March 22,1947. The application of appellee with the same title, Serial No. 634,730, was filed December 13, 1945. In response to a request by the Primary Examiner for a more specific title, appellee changed his title to “Windshield Wiper Blade Linkage Assembly.” Appellants, being the junior party, have the burden of establishing priority of invention by a preponderance of evidence. Testimony was taken on behalf of appellants. Appellee took no testimony. Both parties filed briefs and were represented at the final hearing. The involved subject matter relates to windshield cleaners or wipers particularly adapted for the wiping of curved and flat surfaces, as may be readily ascertained by a reading of the count which is a claim drawn by the Primary Examiner who suggested it for adoption by both parties and which reads as follows: A wiper for cleaning a curved, surface, comprising an elongated blade flexible for conforming to the surface curvature, the blade having an elongated flexible backing strip, a primary yoke extending lengthwise of the strip and having an arm attaching portion, and secondary yokes, one secondary yoke connected intermediate its ends to an end of the primary yoke and having its opposite ends connected to the backing strip at longitudinally spaced points, and another secondary yoke connected intermediate its ends to the opposite end of the primary yoke and having its opposite ends connected to the backing strip at longitudinally spaced points. The motion period closed on January 8, 1949, but on February 25, 1949, the assignee of appellants, the Trico Products Corporation, filed a motion requesting an addition to the interference of the sole application of Scinta, Serial No. 636,548, dated December 22,1945. Accompanying that motion was an affidavit by counsel for the purpose of excusing delay in filing. The motion was set for" }, { "docid": "23422566", "title": "", "text": "issue in Interference No. 80,398 by adding counts drawn from Field’s applications Nos. 352,707, 352,708, and a joint application of Field and Stover, No. 352,710, as well as moving to dissolve the interference on the ground that Knowles’s disclosure was inoperative. On September 21, 1943, the Primary Examiner ruled on the motions of the parties, denying the respective motions to dissolve, and granting the motion of Field’s assignee to bring into the interference the additional applications of Field and Field and Stover as to certain of the proposed counts. On November 17, 1943, the Primary Examiner added to Interference No. 80,398 the Field applications Nos. 352,707 and 352,708. Field thus had three applications in interference with the Knowles application with the relationship of the interference counts and claims of the applications being as follows: Field Case A Field Case B Field Case B Knowles Counts (852,709) (852,708) (852,707) (262,869) 1 41 _ _ 50 2 _ 22 _ 51 3 _ _ 38 52 Also on November 17, 1948, the Primary Examiner declared Interference No. 21,217 to exist between the Field and Stover application No. 352,710 and the before-mentioned Knowles application No. 262,869, the relationship of counts and claims being as follows: Counts Field et al. Knowles 1 29 37 2 31 48 3 <32 43 Both parties took testimony,, each incorporating into a single record the evidence relied upon for both interferences. • The cases came on for hearing before the Board of Interference Examiners in the U. S. Patent Office, which rendered its separate decisions on May 28, 1948, awarding in Interference No. 80,398 priority of invention as to count 1 to Field, and as to counts 2 and 3 to Knowles. Priority of invention as to all counts in Interference No. 81,217 was awarded to Knowles. Knowles entered no appeal as to the adverse ruling on count 1 in Interference No. 80,398. Field has appealed from the board’s decision in Interference No. 80,398, noting 47 assignments of error, while Field and Stover have appealed from the decision in Interference No. 81,217, bringing 35 assignments of error in" }, { "docid": "23422619", "title": "", "text": "20 C. C. P. A. (Patents) 883, 887, 63 F. (2d) 120, 122, 16 U. S. Pat. Q. 442, 445, “unless the question of priority be involved, this court would have no jurisdiction to entertain the appeal, since, in an interference proceeding, priority is our sole concern.” The appellee Knowles having taken no appeal from the award of priority of invention of the subject matter of count 1 to Field, that decision is final and incontestable between the parties. \"The court is without power to affect that decision, and will not do the useless thing now of considering the board’s grounds for its decision on an issue which is moot. Shellaberger v. Schnabel, 10 App. D. C. 145. The decision of the Board of Interference Examiners awarding priority of invention on counts 2 and 3 in Interference No. 80,398 to Knowles is affirmed. Interference No. 81,217. P. A. 5693 The subject matter of this interference is required by the counts to be comprise of a rotating evaporator drum; a flexible belt larger than and encompassing the drum; means for tensioning the belt around-the drum ;• and means for closing the ends of the belt. The counts read as follows: 1. In a heat transfer device: a heat transfer drum; an endless imperforate: belt, said belt being longer than the circumference of said drum, and being, placed around and in contact with said drum; means for tensioning said belt around said drum; means for rotating said drum and driving said belt; end means closing the end openings of said belt for forming therewith a closed chamber ; and a liquid in said chamber and in contact with said belt and drum, which liquid will remain liquid at the operating temperature in the device. 2. In a refrigeration device: a rotatable heat transfer drum; and endless im-perforate belt, said belt being longer than the circumference of said drum, being placed around and in contact with said drum, and being movable with said drum; end means closing the end openings of said belt; and means for refrigerating said -drum by evaporation therein of" }, { "docid": "23422574", "title": "", "text": "ride between them. The metal panel portions of the belt ride against these rubber bands, so that the composite metal belt is tensioned resiliently by the rollers. The metal panel portions of the belt lie in heat transfer relationship against the evaporator segments. Aprons are attached to the outer edges of the composite belt. They extend outwardly to form a connection with end plates in staggered relationship which enclose the ends of the apparatus. A metal band extends around each api-on so as to hold it in contact with the end plates. The apron, is grooved so as to receive the edges of the end plates. As the belt moves, the aprons slide over the end plate assemblies, sealing off the interior of the apparatus from the atmosphere. Nozzles are positioned in the apparatus above the upper evaporator surface and below the lower evaporator. The liquid to be frozen is sprayed onto the belt as it slides over the evaporators. Ice forms and is peeled off of the belt as it bends when passing over the end pulleys. The Knowles device comprises a closed revolvable metallic drum into which refrigerant is fed and removed; an endless metal belt placed around the drum in contact with it; a roll positioned a short distance from the surface of the drum, the belt passing over the roll and being held against the greater surface of the drum by the tension received from the roll riding against its inner surface; an additional roll which rides above the first roll but against the outside surface of the belt at the point where the belt urged outward by the inner roller leaves the drum. In this device, the belt lying against the greater part of the drum’s surface in heat transfer relationship is turned by friction as the drum revolves. The belt, according to the Knowles application, is made to “track” by “crowning” the drum, roll, or both; by “placing a straight sided bead on the edge of the drum along the edge of the belt,” or by “securing to the underside of the belt adjacent" }, { "docid": "23422567", "title": "", "text": "21,217 to exist between the Field and Stover application No. 352,710 and the before-mentioned Knowles application No. 262,869, the relationship of counts and claims being as follows: Counts Field et al. Knowles 1 29 37 2 31 48 3 <32 43 Both parties took testimony,, each incorporating into a single record the evidence relied upon for both interferences. • The cases came on for hearing before the Board of Interference Examiners in the U. S. Patent Office, which rendered its separate decisions on May 28, 1948, awarding in Interference No. 80,398 priority of invention as to count 1 to Field, and as to counts 2 and 3 to Knowles. Priority of invention as to all counts in Interference No. 81,217 was awarded to Knowles. Knowles entered no appeal as to the adverse ruling on count 1 in Interference No. 80,398. Field has appealed from the board’s decision in Interference No. 80,398, noting 47 assignments of error, while Field and Stover have appealed from the decision in Interference No. 81,217, bringing 35 assignments of error in that case before us. The appellants’ applications in interference were filed August 15, 1940. The appellee’s application was filed March 20, 1939. Appellee having filed his application first, the presumption arises that he is the first inventor, Gallagher v. Hien, 25 App. D. C. 77, and the burden is thus on the appellants as junior parties to establish priority of invention by a preponderance of the evidence, Anderson v. Walch, 33 C. C. P. A. (Patents) 774, 152 F. (2d) 975, 68 USPQ 215. Interference No. 80,398, P. A. 5692. As will appear from the counts, the subject matter involved is refrigerating apparatus wherein liquid frozen on the surface of a flexible metal belt passing over a refrigerated surface is removed therefrom by a flexing of the belt by means provided therefor in the apparatus. The counts of Interference No. 80,398 read as follows: 1. An ice making apparatus comprising an evaporator forming part of a closed refrigerating system and Laving a refrigerating surface of constant curvature; an endless flexible belt of beat conducting material;" } ]

[ { "docid": "12858602", "title": "", "text": "tribe has the inherent power to exclude non-members from the reservation. Williams v. Lee, 358 U.S. 217, 219, 79 S.Ct. 269, 3 L.Ed.2d 257 (1959); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1833). That right is supplemented by the tribe’s express powers to govern its internal affairs, Quechan Const., Art. IV, § 17, and to control hunting and fishing on the reservation, id., Art. XI. In addition, the tribe has the express right to maintain a tribal police force with full jurisdiction over the reservation, except as to those matters within the exclusive provinces of state or federal officials. Quechan Bylaws, Art. XIII. Given those powers, the Quechan Tribe may exercise several types of authority over non-members who enter the reservation to hunt or fish. These are the rights to determine who may enter the reservation; to define the conditions upon which they may enter; to prescribe rules of conduct; to expel those who enter the reservation without proper authority or those who violate tribal, state or federal laws; to refer those who violate state or federal laws to state or federal officials; and to designate officials responsible for effectuating the foregoing. It is argued on behalf of the tribe that its tribal court has the inherent authority to assert criminal jurisdiction over non-members of the tribe who violate tribal laws while on the reservation. This power is said to be found in general Indian law. We need not refer to general Indian law to resolve the question in this case, however, because the answer is found in the Quechan Constitution itself. Article IV, Section 7 of that Constitution provides: “The Council shall have the power to promulgate ordinances . . . and to establish minor courts . . . for the trial and punishment of members of the Tribe charged with the commission of offenses set forth in such ordinances.” Consequently, the Quechan Tribe, if it had the power to try non-members of the tribe for violation of tribal law, has foresworn it. Nor, in view of the foregoing, may the Quechan Tribe cause" } ]

[ { "docid": "2300942", "title": "", "text": "constituting the ■ Red Lake Reservation, id., United States v. Holt State Bank, 270 U.S. 49, 58, 46 S.Ct. 197, 70 L.Ed. 465 (1926), Minnesota v. Hitchcock, 185 U.S. 373, 389-390, 22 S.Ct. 650, 46 L.Ed. 954 (1902); and that the Red Lake bands were recognized as the sole owners by right of original Indian occupancy. That manner of occupation [“as Indian lands”] in Menominee Tribe of Indians v. United States, supra, 391 U.S. at 406, 88 S.Ct. 1705, was sufficiently definite to create a treaty right to hunt and fish. With specific reference to the Red Lake Band, the leading source in this area cites: “An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see Article 5, Treaty of July 20, 1837, 7 Stat. 536; Article 2, Treaty of October 4, 1842, 7 Stat. 591; and Article 11, Treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was ‘not much less necessary to the existence of the Indians than the atmosphere they breathed’ remained in them unless granted away.” United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Cohen, Federal Indian Law, 496 — 497 (2d ed. 1958) (citing Op. Acting Sol. M 28107, June 30, 1936). Based upon Menominee, Chippewa, Hitchcock, and Winans, we reach the inescapable conclusion that the Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and that this right has been implicitly recognized in treaties negotiated by that band and the United States. To affect those rights," }, { "docid": "19684444", "title": "", "text": "from their trust waters, and that the State of Washington has been granted no such authority and is without jurisdiction to exercise its regulatory powers on the reservation. Further, plaintiff alleges state regulation of non-Indian fishing on the reservation will hamper proper management of the fisheries resource and impair the economic development of the reservation. The tribes conclude that state regulation of non-Indian fishing is repugnant to the Supremacy Clause and Indian Commerce Clause of the United States Constitution. The United States, as amicus curiae, has joined plaintiff tribes in asserting that the state has no jurisdiction to regulate fishing on the Col-ville Reservation. Conversely, defendant State of Washington argues that, in the absence of express treaty provisions to the contrary, Indian tribes can regulate only Indian fishing; that state regulation of non-Indian fishing on the Colville Reservation does not interfere or conflict with tribal fishing or self-government; that plaintiff (tribes) does not possess the attributes of tribal sovereignty because the Colvilles are not treaty tribes; and that whatever sovereignty plaintiff possessed has been relinquished to the state by legislation. Therefore, the state con- eludes that its general statutory grant of jurisdiction over the civil and criminal affairs on the Colville Reservation authorizes it to regulate non-Indian fishing on the reservation. II. Analysis Plaintiff’s arguments based on the concept of inherent tribal sovereignty, standing alone, have little relevance to the case at bench for it is well established that the sovereign rights of an Indian tribe can be abrogated by federal legislation. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). As the Supreme Court stated in McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973): [T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption. . . . The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the" }, { "docid": "19799369", "title": "", "text": "explicitly preserved state fish and game regulation in areas under potentially exclusive federal control. See, e. g., 16 U.S.C. § 528 (national forests); id. § 668dd(c) (National Wildlife Refuge System); id. §§ 670h(b) & (c)(4), 670i(b)(4), 670k(6) (other public lands). Federal statutes specifically dealing with non-reservation hunting and fishing by non-Indians reveal a total lack of intent to preempt state law by direct federal fish and game regulation.2 * 2. Public Law 280 and the Enabling Acts Public Law 280 extended state civil and criminal jurisdiction over actions to which Indians are parties in five states. See 18 U.S.C. § 1162; 28 U.S.C. § 1360. Public Law 280, as amended, also allows for the assumption of civil and criminal jurisdiction over Indian country by other states if certain conditions are satisfied. See 25 U.S.C. § 1321. The general grant of jurisdiction in Public Law 280 is subject to certain exclusions: Nothing in this section ... shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b); 25 U.S.C. § 1321(b). Although Public Law 280 was not a grant of general civil regulatory control over Indians, see Bryan v. Itasca County, 426 U.S. 373, 385, 390, 96 S.Ct. 2102, 2109, 2111, 48 L.Ed.2d 710 (1976), under Public Law 280, states retain the regulatory jurisdiction over the on-reservation activities of non-Indians that they enjoyed prior to that Law (and absent the effect of the Enabling Acts, see infra). Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253, 1257 (9th Cir. 1976). When Washington took jurisdiction over the Colville reservation, Congress released the state from its obligation, embodied in the Washington Enabling Act, 25 Stat. 676, 677 (1889), and Wash.Const. Art. XXVI, para. 2, to “forever disclaim all right and title” to the land of Indian tribes and concede that that land shall remain “under the absolute jurisdiction and control of the Congress of the United States.” See Washington v." }, { "docid": "11933005", "title": "", "text": "judgment and injunction. The court’s judgment was generally favorable to the Indians : “Ordered, Adjudged, and Decreed that the Confederated Tribes of the Umatilla Indian Reservation and the members thereof have a right, privilege, and immunity afforded them under the Treaty of June 9, 1855, between said Tribes and the United States of America, to catch salmon and steelhead for subsistence purposes at all usual and accustomed stations on tributaries of the Columbia and Snake rivers in Oregon, including the John Day, Walla Walla, Grande Ronde, and Imnaha river systems, without restriction or control under the game laws of the State of Oregon or regulations issued pursuant thereto.” Although the court declined to issue an injunction, it retained jurisdiction to grant such relief. The defendants have appealed. The extent of Indian fishing rights under a treaty between the United States and the Yakima Indians was in issue in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). The court observed that prior to the treaty the Indians had unlimited fishing rights: “The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less neeessary to the existence of the Indians than the atmosphere, they breathed.”' 198 U.S. at 381, 25 S.Ct. 664. Explaining the effect of the treaty upon those rights, the court continued: “New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” (Emphasis added). Ibid. The treaty involved in the instant case is substantially similar to the Yakimas’ treaty and was negotiated at the same common council. Thus, the Supreme Court’s analysis .applies equally here. We hold that the plaintiffs’ treaty reserves to them those unimpeded fishing rights which their ancestors had" }, { "docid": "7176803", "title": "", "text": "The district court granted summary judgment on these claims because it held that it lacked subject matter jurisdiction to entertain the claims under the FPA. The Treaty created property rights on behalf of the Tribe, and the parties agree that the dimensions and contours of these rights have changed over the years in connection with changing relevant circumstances. Thus, the Tribe has an adaptive entitlement that is not the equivalent of an immutable property right. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) (“New conditions came into existence, to which those [Treaty fishing] rights had to be accommodated. Only a limitation on them, however, was necessary and intended, not a taking away.”); see also Fishing Vessel, 443 U.S. at 686-87, 99 S.Ct. 3055 (finding that the Indian tribe had a right to a “fair share” of the available fish, but that right may be modified by changing circumstances such as when the tribe dwindles to just a few members). The federally-licensed Project is an example of changing circumstances that alter the contours of the Tribe’s continuing property rights. In Federal Power Comm’n v. Tuscarora Indian Nation, the Supreme Court made clear that the Tribe’s adaptive entitlement was necessarily informed by the FPA: The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been shown, the Act specifically defines and treats with lands occupied by Indians— tribal lands embraced within Indian reservations. 362 U.S. 99, 118, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960) (emphasis added) (internal quotation marks omitted). The FPA provides a scheme governing challenges to FERC licensing decisions. Under 16 U.S.C. § 8251(b) (“§ 8251(b)”): Any party to a proceeding under this chapter aggrieved by" }, { "docid": "19684445", "title": "", "text": "to the state by legislation. Therefore, the state con- eludes that its general statutory grant of jurisdiction over the civil and criminal affairs on the Colville Reservation authorizes it to regulate non-Indian fishing on the reservation. II. Analysis Plaintiff’s arguments based on the concept of inherent tribal sovereignty, standing alone, have little relevance to the case at bench for it is well established that the sovereign rights of an Indian tribe can be abrogated by federal legislation. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). As the Supreme Court stated in McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973): [T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption. . . . The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power. Supra, at 172, 93 S.Ct. at 1262, 36 L.Ed.2d at 135. Therefore, the Court must begin its inquiry with an examination of inherent tribal rights and must then assess the impact that subsequent legislation has had in diminishing tribal jurisdiction and transferring it to the state. As a basic proposition it is clear that Indians traditionally enjoyed the exclusive right to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty. Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974) cert. denied 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1975); United States v. State of Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff’d. 520 F.2d 676 (9th Cir., 1975). This right is implied where not explicitly mentioned in the agreement establishing a reservation, for such agreements are" }, { "docid": "14685", "title": "", "text": "and for such other Indians as the Department of the Interi- or may see fit to locate thereon. Executive Order of July 2, 1872, reprinted in 1 Kappler, Indian Affairs and Treaties, 916 (2d ed. 1904). Reservations were commonly created with similar language. See U.S. Dept, of the Interior, Federal Indian Law, 613-22 (1958). The President’s orders responded to requests from officers in the Department of the Interior but it is difficult to identify or to know how much weight to give to their purpose. . See United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). The rule of liberal construction should apply to reservations created by Executive Order. See Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 1496, 10 L.Ed.2d 542 (1963). Congress envisioned agricultural pursuits as only a first step in the “civilizing” process. See, e. g., 11 Cong.Rec. 905 (1881). This vision of progress implies a flexibility of purpose. . See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918) (exclusive right to fish implied because necessary for self-sustaining community); United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) (reservation for “absolute and undisturbed use and occupation” includes ownership of minerals and standing timber); Menominee Tribe of Indians v. United States, 391 U.S. 404, 406, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968) (reservation “for a home” includes hunting and fishing rights); and United States v. Finch, 548 F.2d 822, 832 (9th Cir. 1976) (U.S. intended to reserve right of Indians to sustain themselves “from any source, of food which might be available.”) . Omak Creek and No Name Creek have no surface connection. . The Indians may be deprived of the use of wells drilled on allotment 526 but those were constructed with the understanding that this litigation would be unaffected. . In Powers, the federal government had constructed an irrigation project on the Crow Reservation capable of irrigating 20,000 acres. Due to a drought and upstream diversions by respondents (non-Indian successors to Indian" }, { "docid": "14684", "title": "", "text": "The Tribe asked the United States to intervene on its behalf. Instead, the Justice Department filed a separate suit against Walton, based on the theory that the Secretary of the Interior has exclusive jurisdiction over all the water on the reservation. The trial court consolidated the proceedings sua sponte. The United States filed an appeal from the decision and the Tribe moved “not to be bound” by any ruling on U. S. v. Walton, No. 79-4619. The United States has since dropped its appeal and we deny the Tribe’s motion. . The Winters doctrine applies to reservations created by treaty or executive order. Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 1496, 10 L.Ed.2d 542 (1963). . For example, the order creating the Colville reservation read: It is hereby ordered that ... the country bounded on the east and south by the Columbia River, on the west by the Okanogan River, and on the north by the British possessions, be, and the same is hereby, set apart as a reservation for said Indians, and for such other Indians as the Department of the Interi- or may see fit to locate thereon. Executive Order of July 2, 1872, reprinted in 1 Kappler, Indian Affairs and Treaties, 916 (2d ed. 1904). Reservations were commonly created with similar language. See U.S. Dept, of the Interior, Federal Indian Law, 613-22 (1958). The President’s orders responded to requests from officers in the Department of the Interior but it is difficult to identify or to know how much weight to give to their purpose. . See United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). The rule of liberal construction should apply to reservations created by Executive Order. See Arizona v. California, 373 U.S. 546, 598, 83 S.Ct. 1468, 1496, 10 L.Ed.2d 542 (1963). Congress envisioned agricultural pursuits as only a first step in the “civilizing” process. See, e. g., 11 Cong.Rec. 905 (1881). This vision of progress implies a flexibility of purpose. . See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40," }, { "docid": "1821082", "title": "", "text": "State of Washington has exclusive enforcement powers off the reservation. The State of Washington claims “sole and exclusive authority to regulate fishing activities in off-reservation waters”. In interpreting the language of treaties with the Indians, the court must consider “[h]ow the words of the treaty were understood by the unlettered people, rather than their critical meaning”. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832); Winans, supra, 198 U.S. at 380-381, 25 S.Ct. 662, 49 L.Ed. 1089. Moreover, in interpreting Indian treaties the Supreme Court has consistently followed the general rule that “Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith”. Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930). The Treaty expressly reserved to the confederated tribes and bands of Indians “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory”. It would be unreasonable to conclude that in reserving these vital rights, the Indians intended to divest themselves of all control over the exercise of those rights. Prior to the Treaty the regulations for fishing had been established by the Tribe through its customs and tradition. The Indians must surely have understood that Tribal control would continue after the Treaty. In addition, the Treaty of 1855 does not expressly state that the Yakima Nation relinquished its jurisdiction over matters pertaining to fishing rights. As the treaty constitutes a grant of rights from the Indians to the Government, Winans, supra, 198 U.S. at 381, 25 S.Ct. 662, 49 L.Ed. 1089, any rights not granted must be considered retained by the Tribe. Here, the Indians qualified their fishing right only to the extent of permitting citizens of the territory to fish “in common” with them at “usual and accustomed fishing places” off the reservation. Given this fact and the vital role of fishing in the Yakima culture, we conclude that the Yakima Nation did reserve the authority to regulate Tribal fishing at “all" }, { "docid": "19684452", "title": "", "text": "L.Ed.2d at 168. Similarly, the Supreme Court has noted that Public Law 280 granted the State of Washington only “limited jurisdiction” over the Colville Reservation, Antoine v. Washington, supra, 420 U.S. at 204 n. 10, 95 S.Ct. at 950, 43 L.Ed.2d at 137, and that the proviso of section 1162(b) reserves to the Indians the power to regulate fishing on their reservations without limitation. Menominee Tribe v. United States, supra 391 U.S. at 411, 88 S.Ct. at 1710, 20 L.Ed.2d at 702. This construction is consistent with the comprehensive regulatory scheme that plaintiff has adopted to control and utilize the tribal fisheries resources. Applying the longstanding canon of construction “that the wording of treaties and statutes ratifying agreements with the indians is not to be construed to their prejudice”, Antoine v. Washington, supra 420 U.S. at 199, 95 S.Ct. at 948, 43 L.Ed.2d at 134, the Court is constrained to conclude that the federal government has preempted state regulation of fishing on the Colville Reservation and has delegated its regulatory power to the plaintiff tribes, thereby prohibiting any state regulation of fishing on the reservation. However, it does not follow that plaintiffs are entitled to injunctive relief. “The prime prerequisite for injunctive relief is the threat of irreparable future harm.” Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 410 (9th Cir. 1976). In this case, as in Quechan, “there is no indication that the defendants . . . are threatening any future action in derogation of the [tribes’] rights, whatever they might be declared to be.” Id. WHEREFORE, the Court hereby declares that the State of Washington is without jurisdiction to regulate or control fishing by Indians or non-Indians on the Col-ville Reservation. IT IS FURTHER ORDERED that plaintiff’s prayer for injunctive relief is hereby DENIED. . A similar proviso contained in R.C.W. 37.12.-060 differs slightly in its wording by explicitly extending protection from state interference to hunting and fishing rights “afforded under . . . executive order . . .” This difference is consistent with the Court’s determination that the plaintiff tribes retained their hunting and fishing rights" }, { "docid": "17265687", "title": "", "text": "bis original title, confirmed by tbe Government in tbe act of agreeing to tbe reservation.” In United States v. Winans, 198 U. S. 371, 383, 25 Sup. Ct. 662, 49 L. Ed. 1089, the court held that the right of taking fish in the Columbia river 'and the right of erecting temporary buildings for curing them, reserved to the Yakima Indians by treaty, was not a grant of right to the Indians, but a reservation by them of rights already, possessed and not granted away by them. In the Enabling Act, by which the territory of Washington was admitted into' the Union (Act Eeb. 22, 1889, c. 180, § 4, 25 Stat. 676)', the people of the newly created state were required to agree and declare that they forever disclaim all right and title— “to the unappropriated public lands lying within tbe boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that'until tbe title thereto shall have been extinguished by tbe United States, tbe same shall be and remain subject to tbe disposition of tbe United States and said Indian lands shall remain under tbe absolute jurisdiction and control of tbe Congress of tbe United States.” We are unable to assent to the proposition that, because article 7 of the treaty reserves to the President at his discretion the power thereafter to remove the Indians from the reservation, the official survey of 1873 was in effect a removal of the Indians from the lands in controversy; The power to survey the lands so reserved in the treaty was the power to cause the whole or any portion of the reserved' lands to be surveyed into lots, and to assign the same to individuals or families for permanent homes. The land in controversy was not adapted to such individual use, and there was no occasion to survey it, or to take from the Indians on the reservation the common right to use it for the purposes of fishing and digging shellfish, or other purposes, and the surveyor general, in causing" }, { "docid": "2300943", "title": "", "text": "no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was ‘not much less necessary to the existence of the Indians than the atmosphere they breathed’ remained in them unless granted away.” United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Cohen, Federal Indian Law, 496 — 497 (2d ed. 1958) (citing Op. Acting Sol. M 28107, June 30, 1936). Based upon Menominee, Chippewa, Hitchcock, and Winans, we reach the inescapable conclusion that the Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and that this right has been implicitly recognized in treaties negotiated by that band and the United States. To affect those rights, then, by 16 U.S.C. § 668, it was incumbent upon Congress to expressly abrogate or modify the spirit of the relationship between the United States and Red Lake Chippewa Indians on their native reservation. We do not believe it has done so. 16 U.S.C.A. § 668(a) provides: Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in sections 668 to 668d of this title, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to sections 668 to 668d of this title, shall be fined not more than $5,000 or imprisoned not more than one year or both: . The only reference in" }, { "docid": "1885621", "title": "", "text": "to protect the interests of a dependent people. Peoria Tribe of Indians of Oklahoma v. United States, 390 U.S. 468, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968). Accordingly, all doubtful expressions contained in treaties should be resolved in the Indians’ favor, Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), although the Congress has exclusive plenary legislative authority over Indians and all of their tribal relations. Lone Wolf v. Hitchcock, supra. In the instant case there are no treaty rights involved, inasmuch as the Jicarilla Apache Tribe Reservation was carved out of the public domain and withdrawn by Executive order. A tribe occupying lands under a treaty has rights which are contractual in nature; however, a tribe occupying reservation lands by virtue of an Executive Order does so at the will of the Congress. Under either circumstance, i. e., creation of Indian reservations by treaty or Executive order, the exclusive plenary legislative authority of the Congress is superior when exercised. The “jurisdictional” problem relating to the applicable law of “Indian country” was discussed in Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979): Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. 515, 517, [8 L.Ed. 483], state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe “on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 219-220 [79 S.Ct. 269, 270, 3 L.Ed.2d 251].7 As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws. Moe v. Salish & Kootenai Tribes, 425 U.S. 463, [96 S.Ct. 1634, 48 L.Ed.2d 96], except where Congress in the exercise of its plenary and exclusive power over Indian affairs has" }, { "docid": "13791743", "title": "", "text": "States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), enforced Indian treaty rights even against private third-parties. So did United States v. Washington, 157 F.3d at 657. In Winans, the United States, on behalf of certain members of the Yakima Nation, brought suit to enjoin private land owners from preventing Indians’ exercise of their off-reservation treaty rights to fish on the defendants’ private property. See 198 U.S. at 377, 25 S.Ct. 662. The Court held that the treaty between the United States and the Tribe “fixe[d] in the [now privately owned] land such easements as enable the right to be exercised.” Id. at 384, 25 S.Ct. 662. Explained Winans: The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians ... which were not much less necessary to the existence of the Indians than the atmosphere they breathed.... [T]he treaty was not a grant of rights to the Indians, but a grant of right from them — a reservation of those not granted.... [The treaty] imposed a servitude upon every piece of land as though described therein.... The contingency of the future ownership of the lands, therefore, was foreseen and provided for — in other words, the Indians were given a right in the land — the right of crossing it to the river — the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees Id. at 381-82, 25 S.Ct. 662 (emphasis added). Similarly, United States v. Washington held that, “[i]n light of Winans, Fishing Vessel, and the [Stevens] Treaties’ language and power as the supreme law of the land, the district court correctly determined that the Tribes have a right to harvest shellfish on private tidelands.” 157 F.3d at 647 (emphasis added). (3) So, then, if the Treaty is self-enforcing and the Treaty can be enforced against non-contracting parties, what" }, { "docid": "13791742", "title": "", "text": "agents are bound to respect treaty-created rights are legion. See, e.g., County of Oneida II, 470 U.S. at 235-36, 105 S.Ct. 1245 (approving a federal common law suit against two counties for violation of. federal aboriginal rights partly secured by treaty); Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 669-70, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (Fishing Vessel) (suit brought by the United States “on its own behalf and as trustee for seven Indian tribes” against the State of Washington to enforce treaty rights; other tribes, the state’s Fisheries and Game Departments, and one commercial fishing group were joined as parties);United States v. Washington, 157 F.3d 630, 638 (9th Cir.1998) (suit brought by numerous Indian tribes and the United States (on the tribes’ behalf) against the State of Washington to enforce treaty rights; several private parties intervened and appealed); Kimball v. Callahan, 493 F.2d 564, 565 (9th Cir.1974) (suit brought by individual Indians against officers of the State of Oregon to enforce treaty rights). Further, as the majority recognizes, United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), enforced Indian treaty rights even against private third-parties. So did United States v. Washington, 157 F.3d at 657. In Winans, the United States, on behalf of certain members of the Yakima Nation, brought suit to enjoin private land owners from preventing Indians’ exercise of their off-reservation treaty rights to fish on the defendants’ private property. See 198 U.S. at 377, 25 S.Ct. 662. The Court held that the treaty between the United States and the Tribe “fixe[d] in the [now privately owned] land such easements as enable the right to be exercised.” Id. at 384, 25 S.Ct. 662. Explained Winans: The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians ... which were not much less necessary to the existence of the Indians than the atmosphere they breathed.... [T]he treaty was not a grant of rights to the Indians, but a grant of right from them — a reservation of those not" }, { "docid": "19684448", "title": "", "text": "plenary power of the United States to abrogate such rights and to transfer jurisdiction over the control of reservation affairs to the states. United States v. Mazurie, supra, Lone Wolf v. Hitchcock, supra. Accordingly, Congress has given the states permission to assume general civil and criminal jurisdiction over the Indian reservations within their borders, Public Law 83-280, 67 Stat. 588 (1953) (hereinafter Public Law 280), and Washington has assumed such jurisdiction over the Colville Reservation. See R.C.W. 37.12. However, this general grant of jurisdiction to the State of Washington is subject to the limitation that Indian fishing rights shall not be abridged by the state: Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b). The Indians’ right to control fishing on their reservation is enforced by 18 U.S.C. § 1165, which makes it a crime for any person to take game from an Indian reservation “without lawful authority or permission”. Public Law 280 does not affect the applicability of this enforcement provision. United States v. Pollmann, 364 F.Supp. 995, 1002 (D.Mont.1973). Since plaintiff (tribes) has enacted a comprehensive program for the administration of tribal fisheries resources as authorized by the proviso of section 1162(b), any state infringement of the tribes’ exercise of this regulatory power would violate the Supremacy Clause. Antoine v. Washington, 420 U.S. 194, 205, 95 S.Ct. 944, 950-951, 43 L.Ed.2d 129, 137 (1975), Metlakatla Indians v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962). Therefore, the central inquiry in the case is whether the proviso of section 1162(b) preempts the state’s power to regulate fishing on the reservation or merely forbids state regulation which interferes with plaintiff’s regulatory scheme. The state’s jurisdictional grant under Public Law 280 and the limitation on that grant contained in the proviso of 18 U.S.C. § 1162(b) create a situation of dual state-federal jurisdiction over the Colville Reservation. This" }, { "docid": "12763726", "title": "", "text": "8 L.Ed. 483 (1832). The sovereign powers of the Tribe in wildlife management are so pervasive that sovereignty here moves from a mere backdrop into a leading role on the litigational stage. The historical relationship between Indian tribes, their lands, and the wild game thereon has of necessity been one of great interdependence. Access to and control of wildlife was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). After a careful, thoughtful analysis, the district court properly determined that, before the signing of the Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852), the Tribe “had inherent and complete authority to control the fish and game found within the confines of the tribal territory.” Record, vol. 1, at 208. Since the treaty is “not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted,” id. (quoting United States v. Winans, 198 U.S. at 381, 25 S.Ct. at 664), the Tribe retains its authority even though the treaty itself did not fix the boundaries of the tribal reservation. Cf. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Abrogation of any rights protected by treaty, particularly fundamental hunting and fishing privileges, must be explicit to be effective, see Menominee Tribe of Indians v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968), and no congressional enactment here meets that standard. See United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). The Tribe’s inherent authority stems largely from the traditional reliance on wild game for basic survival needs. See F. Cohen, Handbook of Federal Indian Law 286 (1942). However, the Tribe’s historical use of only some species within its territory does not mean that the game control powers reserved by treaty are less than all-encompassing. It is quite irrelevant whether the Mescalero at one time were primarily hunters, fishermen, or gatherers. At" }, { "docid": "14664", "title": "", "text": "the Indians for whom it was created. We also consider their need to maintain themselves under changed circumstances. See United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). These factors demonstrate that one purpose for creating this reservation was to provide a homeland for the Indians to maintain their agrarian society. In a similar setting, the Supreme Court agreed with a Master’s finding that water \"was reserved to meet future as well as present needs, and concluded “that the only feasible and fair way by which reserved water for the reservation can be measured is irrigable acreage.” Arizona v. California, 373 U.S. at 600-01, 83 S.Ct. at 1497-98. We conclude that, when the Colville reservation was created, sufficient appurtenant water was reserved to permit irrigation of all practicably irrigable acreage on the reservation. Providing for a land-based agrarian society, however, was not the only purpose for creating the reservation. The Colvilles traditionally fished for both salmon and trout. Like other Pacific Northwest Indians, fishing was of economic and religious importance to them. See Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 665, 99 S.Ct. 3055, 3064, 61 L.Ed.2d 823 (1978); United States v. Winans, supra; [1871] Report of the Commissioner of Indian Affairs 277. The Tribe’s principal historic fishing grounds on the Columbia River have been destroyed by dams. The Indians have established replacement fishing grounds in Omak Lake by planting a non-indigenous trout. We agreé with the district court that preservation of the tribe’s access to fishing grounds was one purpose for the creation of the Colville Reservation. Under the circumstances, we find an implied reservation of water from No Name Creek for the development and maintenance of replacement fishing grounds. We note that the nature of a right to water for a replacement fishery is such that it cannot coexist with continuing rights to water for a fishery in the watershed where the fishery historically existed. Walton does not argue that the tribe has such rights. We affirm the district court’s holding that the Colvilles have a" }, { "docid": "19684447", "title": "", "text": "not grants of rights to the Indians, but rather a reservation of rights already possessed by them and not granted away. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). As stated in United States Department of Interior, Federal Indian Law (1958) at 497: The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right . . . remained in them unless granted away. Further, this right is extant whether the reservation is created by executive order or established by treaty. United States v. Walker River Irrigation District, 104 F.2d 334 (9th Cir. 1939); Quechan Tribe of Indians v. Rowe, 350 F.Supp. 106 (S.D.Cal.1972) aff’d in part, reversed in part 531 F.2d 408 (9th Cir. 1976); Federal Indian Law at 614-616. See also Spalding v. Chandler, 160 U.S. 394, 403, 16 S.Ct. 360, 364, 40 L.Ed. 469, 472 (1896). Balanced against plaintiff’s inherent right to exclusive control of fishing on the Colville Reservation is the plenary power of the United States to abrogate such rights and to transfer jurisdiction over the control of reservation affairs to the states. United States v. Mazurie, supra, Lone Wolf v. Hitchcock, supra. Accordingly, Congress has given the states permission to assume general civil and criminal jurisdiction over the Indian reservations within their borders, Public Law 83-280, 67 Stat. 588 (1953) (hereinafter Public Law 280), and Washington has assumed such jurisdiction over the Colville Reservation. See R.C.W. 37.12. However, this general grant of jurisdiction to the State of Washington is subject to the limitation that Indian fishing rights shall not be abridged by the state: Nothing in this section . . . shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b). The Indians’ right to control fishing on their reservation is enforced by 18 U.S.C. § 1165, which makes it a crime" }, { "docid": "19684446", "title": "", "text": "applicable treaties and statutes which define the limits of state power. Supra, at 172, 93 S.Ct. at 1262, 36 L.Ed.2d at 135. Therefore, the Court must begin its inquiry with an examination of inherent tribal rights and must then assess the impact that subsequent legislation has had in diminishing tribal jurisdiction and transferring it to the state. As a basic proposition it is clear that Indians traditionally enjoyed the exclusive right to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty. Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974) cert. denied 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1975); United States v. State of Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff’d. 520 F.2d 676 (9th Cir., 1975). This right is implied where not explicitly mentioned in the agreement establishing a reservation, for such agreements are not grants of rights to the Indians, but rather a reservation of rights already possessed by them and not granted away. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). As stated in United States Department of Interior, Federal Indian Law (1958) at 497: The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right . . . remained in them unless granted away. Further, this right is extant whether the reservation is created by executive order or established by treaty. United States v. Walker River Irrigation District, 104 F.2d 334 (9th Cir. 1939); Quechan Tribe of Indians v. Rowe, 350 F.Supp. 106 (S.D.Cal.1972) aff’d in part, reversed in part 531 F.2d 408 (9th Cir. 1976); Federal Indian Law at 614-616. See also Spalding v. Chandler, 160 U.S. 394, 403, 16 S.Ct. 360, 364, 40 L.Ed. 469, 472 (1896). Balanced against plaintiff’s inherent right to exclusive control of fishing on the Colville Reservation is the" } ]

[ { "docid": "3104557", "title": "", "text": "Mississippi’s antiblocking statute misses the point. Regardless of why the Elams brought their negligence per se claim, the effect of the claim is to economically regulate KCSR’s switching operations. To be sure, not every state law targeting rail operations is completely preempted by the ICCTA. Under the standards we have discussed, the ICCTA will not completely preempt valid exercises of a state’s police powers in most cases. See Fayus, 602 F.3d at 451 (distinguishing economic regulations from public health, safety, and environmental regulations). Indeed, the Federal Railroad Safety Act (FRSA) expressly provides that states may enact (and citizens may enforce) rail safety laws in certain circumstances. See 49 U.S.C. § 20106(a)(2), (b)(1); see also Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir.2001) (“[T]he ICCTA and its legislative history contain no evidence that Congress intended for the STB to supplant the FRA’s authority over rail safety.”). But we have already determined that a state antiblocking statute like the one at issue in this case does not pertain to “traditionally state-controlled safety issues.” Friberg, 267 F.3d at 444 n. 18. The statute therefore is incompatible with the ICCTA and not saved by the FRSA. We emphasize our holding so far is not broad. We do not anticipate many state law claims will be completely preempted (and thus removable to federal court) under the standards we have discussed. Complete preemption applies only when a plaintiffs claim directly attempts to manage or govern a railroad’s decisions in the economic realm. A negligence per se claim based on Mississippi’s antiblocking statute happens to be one such claim. 4. The district court would have original jurisdiction over the Elams’ negligence per se claim. The Elams approach the complete preemption issue from yet another perspective. The Elams contend the district court could not have exercised original (and hence removal) jurisdiction over their negligence per se claim because the STB has “exclusive” jurisdiction over claims under the ICCTA. See 49 U.S.C. § 10501(b)(1) (providing that STB has “exclusive” jurisdiction over remedies provided in ICCTA). The Elams point to the Second Circuit’s decision in Sullivan" } ]

[ { "docid": "3104553", "title": "", "text": "se claim based on a state antiblocking statute substantially identical to the Mississippi statute at issue in this case. 267 F.3d at 444. We reasoned that the ICCTA does not permit states to directly regulate “a railroad’s economic decisions such as those pertaining to train length, speed or scheduling.” Id. at 444. Sitting en banc, we confirmed this holding in Franks Investment v. Union Pacific Railroad. 593 F.3d at 411. The only issue here is whether Friberg applies to the context of complete preemption. We have already held the ICCTA completely preempts state law tort actions that “fall squarely” under § 10501(b). PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir.2005); Barrois, 533 F.3d at 331. We have not yet defined what it means to “fall squarely” under § 10501(b), but our cases provide some guidance. First, as discussed above, § 10501(b) expressly preempts only state laws that “manage or govern” rail transportation. Franks, 593 F.3d at 411; see also H.R. Conf. Rep. No. 104-422, at 167 (1995), reprinted in 1995 U.S.C.C.A.N. 850, 853 (stating that “exclusivity is limited to remedies with respect to rail regulation — not State and Federal law generally”). This suggests a state law does not “fall squarely” under § 10501(b) unless it attempts to manage or govern rail transportation. Second, we have recognized the core purpose of § 10501(b) is to prevent states from regulating rail transportation in the “economic realm.” Friberg, 267 F.3d at 443; see also Fayus, 602 F.3d at 451. This recognition is consistent with Congress’s intent regarding the completely preemptive effect of § 10501(b). See H.R.Rep. No. 104-311, at 95-96, 1995 U.S.C.C.A.N. at 807, 808 (asserting “the direct and complete pre-emption of State economic regulation of railroads.”). This suggests a state law does not “fall squarely” under § 10501(b) unless it attempts to manage or govern rail transportation in the economic realm. Lastly, we have specifically determined that a state law tort remedy that would directly regulate a railroad’s switching rates and services falls squarely under § 10501(b). PCI, 418 F.3d at 540; see" }, { "docid": "3104564", "title": "", "text": "see also Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (stating acts of Congress “should not be read as a series of unrelated and isolated provisions”). In fact, we think the doctrine of primary jurisdiction provides the best way to reconcile §§ 10501(b) and 11704(c)(1). Under the ICA, the ICC had “exclusive primary jurisdiction” to decide certain matters affecting transportation policy. W. Pac., 352 U.S. at 63, 77 S.Ct. 161. Viewed in this light, § 10501(b) also may be interpreted as vesting the STB with “exclusive” primary jurisdiction over the remedies provided in the ICCTA. 49 U.S.C. § 10501(b)(1). When a civil action in federal court arises under the ICCTA, the action ordinarily should be stayed and the relevant claims referred to the STB. But recognizing the STB’s primary jurisdiction does not divest the district court of its original subject matter jurisdiction. Reiter, 507 U.S. at 268, 113 S.Ct. 1213. Thus interpreted, § 10501(b) and the doctrine of primary jurisdiction ensure both that the STB remains the primary policy maker on matters arising under the ICC-TA, and also that matters falling squarely under the ICCTA do not languish in state courts for lack of federal removal jurisdiction. Furthermore, when the text of a statute is susceptible of more than one reasonable meaning, we may look to legislative history to discern legislative intent. See United States v. Valle, 538 F.3d 341, 345 (5th Cir.2008). Here, legislative history suggests Congress did not intend § 10501(b) to preclude original (or removal) federal jurisdiction over claims arising under the ICCTA. For one, Congress was clear that § 10501(b) establishes the “complete preemption” of state economic regulation of railroads. H.R.Rep. No. 104-311, at 95-96, 1995 U.S.C.C.A.N. at 807, 808. Complete preemption and removal jurisdiction are simply two sides of the same coin: a finding of complete preemption “represents a conclusion that all claims on the topic arise under federal law, so that 28 U.S.C. § 1441 permits removal.” Pollitt v. Health Care Serv. Corp., 558 F.3d 615, 616 (7th Cir.2009); see also Barrois, 533 F.3d at 331" }, { "docid": "20446093", "title": "", "text": "is, only if they would have the effect of unreasonably burdening or interfering with rail transportation, which involves a fact-bound case-specific determination.” We discover articulations of such a test in STB decisions: For state or local actions that are not facially preempted, the section 10501(b) preemption analysis requires a factual assessment of whether that action would have the effect of preventing or unreasonably interfering with railroad transportation. In Barrois, we expressed interest in but did not need to endorse or reject the STB’s as-applied analysis for railroad crossing disputes. 533 F.3d at 333. We observed that the usual crossing disputes were not “categorically preempted” or “facially preempted” under the STB test but were to be resolved in state court. Id. Instead, “within the STB’s analytical framework, preemption claims in routine crossing cases fall into the category of as-applied preemption challenges.” Id. We today go further in our review of the STB’s test. Franks and the STB argue that we should give deference to the STB’s interpretation of the preemptive effect of the ICCTA and therefore apply the STB’s preemption analysis. We acknowledged in Barrois that the STB was “the agency authorized by Congress to administer” the ICCTA, making it “uniquely qualified to determine whether state law should be preempted by the” ICCTA. 533 F.3d at 331 (internal quotation marks and citations omitted). However, the Supreme Court has recently reminded us that the reach of preemption is unlikely to be a matter within the expertise of an agency: While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Wyeth v. Levine, — U.S. -, 129 S.Ct. 1187, 1201, 173 L.Ed.2d 51 (2009) (internal quotation marks and citations omitted). Therefore, the STB’s decision regarding the preemptive" }, { "docid": "20446092", "title": "", "text": "would only be during construction; the storm sewer would be underground; the railroad eventually would reclaim use of its entire surface right of way. The set of City of Lincoln rulings are informative because they highlight relevant distinctions. Substantial interference with railroad operations will be preempted; routine crossing disputes will not. Barrois, 533 F.3d at 332-33. For a state court action to be expressly preempted under the ICCTA, it must seek to regulate the operations of rail transportation. Franks’s possessory action invokes only state property laws and is not expressly preempted. B. Implied Preemption Our next question is which test should be used to determine whether Franks’s action is impliedly preempted. Franks argues that we should adopt the test used by the STB for such a determination. The STB’s amicus brief to the en banc court explained the two-part test it applies to preemption questions. We have already discussed the STB’s view about the kinds of state regulation that are expressly preempted. According to its brief, other state law actions “may be preempted as applied—that is, only if they would have the effect of unreasonably burdening or interfering with rail transportation, which involves a fact-bound case-specific determination.” We discover articulations of such a test in STB decisions: For state or local actions that are not facially preempted, the section 10501(b) preemption analysis requires a factual assessment of whether that action would have the effect of preventing or unreasonably interfering with railroad transportation. In Barrois, we expressed interest in but did not need to endorse or reject the STB’s as-applied analysis for railroad crossing disputes. 533 F.3d at 333. We observed that the usual crossing disputes were not “categorically preempted” or “facially preempted” under the STB test but were to be resolved in state court. Id. Instead, “within the STB’s analytical framework, preemption claims in routine crossing cases fall into the category of as-applied preemption challenges.” Id. We today go further in our review of the STB’s test. Franks and the STB argue that we should give deference to the STB’s interpretation of the preemptive effect of the ICCTA and therefore" }, { "docid": "11879178", "title": "", "text": "10501(b) of the ICCTA, that decision focused on whether the complete preemption doctrine applied, as opposed to what extent it applied. We have never defined the precise contours of complete preemption under § 10501(b) or stated how broadly the complete preemption doctrine extends in the context of the ICCTA. The STB has articulated a comprehensive test for determining the extent to which a particular state action or remedy is preempted by § 10501(b). However, the STB’s test applies to ordinary preemption analysis under § 10501(b); the test does not necessarily apply to complete preemption. Nonetheless, as discussed below, the STB’s test clarifies the status of routine crossing cases within the framework of the ICCTA and thus is instructive. The STB’s § 10501(b) preemption analysis distinguishes between two types of preempted state actions or regulations. First, there are those state actions that are “categorically preempted” by the ICCTA because such actions “would directly conflict with exclusive federal regulation of railroads.” CSX Transportation, Inc. — Petition for Declaratory Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2-*3 (S.T.B. May 3, 2005). Regulations falling within this first category are “facially preempted” or “categorically preempted” and come in two types: The first is any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the Board has authorized .... Second, there can be no state or local regulation of matters directly regulated by the Board — such as the construction, operation, and abandonment of rail lines (see 49 U.S.C. 10901-10907); railroad mergers, line acquisitions, and other forms of consolidation (see 49 U.S.C. 11321-11328); and railroad rates and service (see 49 U.S.C. 10501(b), 10701-10747, 11101-11124). Id. at *2 (citations and footnote omitted). State actions such as these constitute “per se unreasonable interference with interstate commerce.” Id. at *3. As such, the preemption analysis for state regulations in this first category is addressed to “the act of regulation itself’ and “not to the reasonableness of the particular state or local" }, { "docid": "3104546", "title": "", "text": "(internal quotation marks and brackets omitted); see also Franks, 593 F.3d at 407. “The question in complete preemption analysis is whether Congress intended the federal cause of action to be the exclusive cause of action for the particular claims asserted under state law.” Barrois, 533 F.3d at 331; see also Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Complete preemption must be distinguished from “defensive preemption” (i.e., “conflict preemption” or “ordinary preemption”). Barrois, 533 F.3d at 331. Defensive preemption does not create federal jurisdiction and simply “declares the primacy of federal law, regardless of the forum or the claim.” Id. “As a general matter, complete preemption is less common and more extraordinary than defensive or ordinary preemption.” Id. Indeed, complete preemption is a “narrow” exception to the well-pleaded complaint rule. Beneficial, 539 U.S. at 5, 123 S.Ct. 2058. In determining the nature and reach of federal preemption, Congress’s intent is the “ultimate touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Congress can indicate its preemptive intent either expressly through a statute’s plain language, or impliedly through a statute’s “structure and purpose.” Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008). Regardless of how Congress indicates its intent, we begin “with the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. (internal quotation marks and citation omitted); Franks, 593 F.3d at 407. This assumption applies with “particular force” when Congress legislates in a field traditionally occupied by state law. Altria, 129 S.Ct. at 543. On the other hand, the assumption applies with less force when Congress legislates in a field with “a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). “Historically, federal regulation of railroads has been extensive.... ” Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir.2008). The Elams’ well-pleaded complaint asserts" }, { "docid": "11879177", "title": "", "text": "in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 49 U.S.C. § 10501(b). The “Board” refers to the Surface Transportation Board (“STB”), 49 U.S.C. § 10102(1), which is the body authorized by Congress to administer the ICCTA. See Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir.2001) (noting that with the ICCTA Congress abolished the Interstate Commerce Commission (“ICC”) and replaced it with the STB to perform many of the regulatory functions previously performed by the ICC). “As the agency authorized by Congress to administer the [ICCTA], the Transportation Board is uniquely qualified to determine whether state law should be preempted by the [ICCTA].” Emerson v. Kansas City S. Ry. Co., 503 F.3d 1126, 1130 (10th Cir. 2007) (alterations in original) (quoting Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 642 (2d Cir.2005)). Although PCI Transportation applied the complete preemption doctrine to an asserted state remedy that fell “squarely” under § 10501(b) of the ICCTA, that decision focused on whether the complete preemption doctrine applied, as opposed to what extent it applied. We have never defined the precise contours of complete preemption under § 10501(b) or stated how broadly the complete preemption doctrine extends in the context of the ICCTA. The STB has articulated a comprehensive test for determining the extent to which a particular state action or remedy is preempted by § 10501(b). However, the STB’s test applies to ordinary preemption analysis under § 10501(b); the test does not necessarily apply to complete preemption. Nonetheless, as discussed below, the STB’s test clarifies the status of routine crossing cases within the framework of the ICCTA and thus is instructive. The STB’s § 10501(b) preemption analysis distinguishes between two types of preempted state actions or regulations. First, there are those state actions that are “categorically preempted” by the ICCTA because such actions “would directly conflict with exclusive federal regulation of railroads.” CSX Transportation, Inc. — Petition for Declaratory Order, STB Finance Docket No. 34662, 2005 WL 1024490," }, { "docid": "23143257", "title": "", "text": "or acquisition transaction approved under 49 U.S.C. § 11323-25, “[a] rail earlier ... participating in that approved or exempted transaction is exempt from the antitrust laws and from all other law, including state and municipal law, as necessary to let that rail carrier ... hold, maintain, and operate property ... acquired through the transaction.” 49 U.S.C. § 11321(a) (1997) (emphasis added). The section unambiguously states: “The authority of the Board under this subchapter is exclusive. ” Id. (emphasis added). The preemptive effect of the ICCTA, which went into effect January 1, 1996, is a question of first impression on the appellate level of this circuit. The district courts which have had the opportunity to examine this question have applied federal preemption. Despite the petitioner’s claims to the contrary, the reasoning of these courts support preemption in this case as well. In CSX Transp., Inc. v. Georgia Public Service Comm’n, 944 F.Supp. 1573 (N.D.Ga.1996), the district court found § 10501(b)(2)’s preemption of state regulation of railroad agency closings by stating: “It is difficult to imagine a broader statement of Congress’s intent to preempt state regulatory authority over railroad operations.” 944 F.Supp. at 1581. “Interpreting the preemption clause in the ICC Termination Act to be broad enough to preempt state regulation of agency closings,” the court stated, “is consistent with the Act’s grant of exclusive jurisdiction over almost all matters of rail regulation to the STB.” Id. The Montana district court in Burlington Northern Santa Fe Corp. v. Anderson, 959 F.Supp. 1288, 1294-95 (D.Mont.1997), made a similar broad reading of the ICCTA to find preemption of state regulation of railroad agencies. “Legislative history supports this analysis,” the court stated, “as Congress noted that the ‘Federal scheme of economic regulation and deregulation is intended to address and encompass all such regulation and to be completely exclusive.’ ” 959 F.Supp. at 1295 (quoting H.R.Rep. No. 104-311, 104th Cong., 1st Sess., at 96 (1995), reprinted in U.S.C.C.A.N. 793, 808). In fact, there is nothing in the case law that supports Auburn’s argument that, through the ICCTA, Congress only intended preemption of economic regulation of the" }, { "docid": "20446094", "title": "", "text": "apply the STB’s preemption analysis. We acknowledged in Barrois that the STB was “the agency authorized by Congress to administer” the ICCTA, making it “uniquely qualified to determine whether state law should be preempted by the” ICCTA. 533 F.3d at 331 (internal quotation marks and citations omitted). However, the Supreme Court has recently reminded us that the reach of preemption is unlikely to be a matter within the expertise of an agency: While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Wyeth v. Levine, — U.S. -, 129 S.Ct. 1187, 1201, 173 L.Ed.2d 51 (2009) (internal quotation marks and citations omitted). Therefore, the STB’s decision regarding the preemptive effect of the ICCTA and the test it uses to determine preemption are not binding on us. Still, we are free to adopt the STB’s preemption test to the extent that we find it to be reasonable and a persuasive interpretation of the relevant considerations. The STB’s test places in ICCTA specifics the general concerns of conflict preemption, those concerns being whether compliance with both state and federal law is impossible. Friberg, 267 F.3d at 442. We adopt the STB’s as-applied preemption analysis as appropriate for implied preemption under the ICCTA. Under this fact-based test, state law actions can be preempted as applied if they have the effect of unreasonably burdening or interfering with rail transportation. The district court did not reach the issue of implied preemption because it found Franks’s state law claims to be expressly preempted. Franks makes several arguments regarding why its claim should not be impliedly preempted. Franks’s primary argument is that the facts as proven in the district court do not show that these private railroad crossings unreasonably burden or" }, { "docid": "12682177", "title": "", "text": "S.Ct. 1235, 20 L.Ed.2d 126 (1968) (analyzing Labor Management Relations Act, 29 U.S.C. § 185). This language may be powerful enough to suggest that Congress intended that the ICCTA completely preempt certain state-law claims. See Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir.2008) (“[T]he ICCTA uses language that could support complete preemption in an appropriate case.”); PCI Tramp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 544 (5th Cir.2005) (holding that the plain language of § 10501 supports complete preemption of some claims). The purposes and legislative history of the ICCTA also suggest that Congress may have intended complete preemption of certain state-law claims. See Deford v. Soo Line R.R, Co., 867 F.2d 1080, 1086 (8th Cir.1989) (noting that courts may look to the purposes and history of a statute to determine Congress’s preemptive intent). For example, a House Report highlights the need for uniform federal regulation of railroads and states that “changes are made to reflect the direct and complete pre-emption of State economic regulation of railroads.” H.R.Rep. No. 104-311, at 95-96 (1995). Assuming that Congress intended complete preemption of certain claims, however, there remains the crucial question whether the claims in this action fall within the scope of the ICCTA’s complete preemption. The Rail Group focuses their arguments on the broad language of the ICCTA’s preemption provision, 49 U.S.C. § 10501(b). But these arguments conflate complete and ordinary preemption. The ICCTA’s express preemption provision may be a key factor in determining the extent of the statute’s ordinary preemption, cf. St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, at 1021-22 (8th Cir.2015) (applying an express preemption clause to determine the scope of ordinary preemption under the Affordable Care Act), as well as Congress’s intent to completely preempt some claims, but it does not address removal or explicitly provide for federal-question jurisdiction over all preempted state-law claims. Complete and ordinary preemption are not necessarily coextensive. See, e.g., Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir.2009). The scope of complete preemption turns primarily on the" }, { "docid": "3104558", "title": "", "text": "Friberg, 267 F.3d at 444 n. 18. The statute therefore is incompatible with the ICCTA and not saved by the FRSA. We emphasize our holding so far is not broad. We do not anticipate many state law claims will be completely preempted (and thus removable to federal court) under the standards we have discussed. Complete preemption applies only when a plaintiffs claim directly attempts to manage or govern a railroad’s decisions in the economic realm. A negligence per se claim based on Mississippi’s antiblocking statute happens to be one such claim. 4. The district court would have original jurisdiction over the Elams’ negligence per se claim. The Elams approach the complete preemption issue from yet another perspective. The Elams contend the district court could not have exercised original (and hence removal) jurisdiction over their negligence per se claim because the STB has “exclusive” jurisdiction over claims under the ICCTA. See 49 U.S.C. § 10501(b)(1) (providing that STB has “exclusive” jurisdiction over remedies provided in ICCTA). The Elams point to the Second Circuit’s decision in Sullivan v. American Airlines, which held that the Railway Labor Act (RLA) does not completely preempt state-law-based minor disputes because minor disputes under the RLA cannot be filed in the first instance in federal court. 424 F.3d 267, 276 (2d Cir.2005). The Elams’ argument is unpersuasive in the context of the ICCTA for several reasons. First, we have already held the ICCTA may completely preempt at least some state law tort claims. See PCI, 418 F.3d at 540. This alone prevents us from adopting Sullivan’s reasoning in this context. Second, the district court would have had original jurisdiction over the Elams’ negligence per se claim under 28 U.S.C. §§ 1331 and 1337. Section 1337 authorizes “original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies____” 28 U.S.C. § 1337(a); see also 28 U.S.C. § 1331 (authorizing original jurisdiction of all civil actions arising under federal laws). For the reasons already discussed, the Elams’ negligence per se claim arises under the ICCTA," }, { "docid": "11879182", "title": "", "text": "not preempted if they do not hinder rail operations or pose safety risks.”). Thus, within the STB’s analytical framework, preemption claims in routine crossing cases fall into the category of as-applied preemption challenges. The STB’s position with respect to these routine crossing cases is consistent with the historical, pre-ICCTA rule governing these crossing disputes. As the Supreme Court long-ago explained: The care of grade crossings is peculiarly within the police power of the states, and, if it is seriously contended that the cost of this grade crossing is such as to interfere with or impair economical management of the railroad, this should be made clear. It was certainly not intended by the Transportation Act to take from the states or to thrust upon the Interstate Commerce Commission investigation into parochial matters like this, unless by reason of their effect on economical management and service, their general bearing is clear. Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35, 49 S.Ct. 69, 73 L.Ed. 161 (1928) (citations omitted); see also Erie R.R. Co. v. Bd. of Pub. Util. Comm’rs, 254 U.S. 394, 409, 41 S.Ct. 169, 65 L.Ed. 322 (1921) (Holmes, J.) (“It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways.” (internal quotation marks omitted)). The Railroad argues that the Louisiana statutory scheme for enclosed estate owners, which allegedly authorizes the Landowners’ construction and use of these private at-grade crossings, is completely preempted by the ICCTA because the scheme prevents or unreasonably interferes with railroad operations. Framing the Railroad’s argument within the structure of the STB’s preemption analysis, the Railroad raises an as-applied preemption challenge to the Louisiana state law. However, the Railroad does not argue why the STB’s test for ordinary preemption under the ICCTA should also govern or help define the scope of the distinct jurisdictional doctrine of complete preemption. More specifically, the Railroad fails" }, { "docid": "20446076", "title": "", "text": "both to prevent and to limit preemption. This court has explained that the presumption against preemption is applicable to “areas of law traditionally reserved to the states, like police powers and property law .... ” Davis v. Davis, 170 F.3d 475, 481 (5th Cir.1999) (en banc). More recently and topically, we discussed the presumption against preemption in another railroad crossing case. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321 (5th Cir.2008). We found the no-preemption presumption to apply “with full force to this generally applicable state property law, even if applied to permit a private, at-grade railroad crossing.” Id. at 334. However, the specific preemption issue in Barrois was different. We considered whether there was “complete preemption” under the ICCTA. Under that doctrine, a state law claim will be transformed into one that arises under federal law when a federal statute commands the entire legal arena and in effect displaces any competing state law. Id. at 331. Such preemption actually creates federal jurisdiction by its domination of the arena. Id. We found no complete preemption. Id. at 338. Today we address the more common, indeed, the ordinary category of preemption. We conclude, though, that the presumption need not be invoked in this case. Even without analyzing how that presumption might limit the preemptive effect of this enactment, we decide that preemption does not apply. Today’s dispute was created by the physical intersection of railroad operations and an owner’s access to its land. Consequently, the law to be applied, absent preemption, is that which Louisiana applies to real property disputes. A. Express Preemption Because the relevant statute contains a preemption clause, statutory construction analysis begins with “the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The parties disagree over the meaning of the text. The entire relevant section of the statute is only two, though lengthy, sentences. A structural issue is the relationship between the two sentences. The Union Pacific argues, first, that what" }, { "docid": "11879183", "title": "", "text": "R.R. Co. v. Bd. of Pub. Util. Comm’rs, 254 U.S. 394, 409, 41 S.Ct. 169, 65 L.Ed. 322 (1921) (Holmes, J.) (“It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways.” (internal quotation marks omitted)). The Railroad argues that the Louisiana statutory scheme for enclosed estate owners, which allegedly authorizes the Landowners’ construction and use of these private at-grade crossings, is completely preempted by the ICCTA because the scheme prevents or unreasonably interferes with railroad operations. Framing the Railroad’s argument within the structure of the STB’s preemption analysis, the Railroad raises an as-applied preemption challenge to the Louisiana state law. However, the Railroad does not argue why the STB’s test for ordinary preemption under the ICCTA should also govern or help define the scope of the distinct jurisdictional doctrine of complete preemption. More specifically, the Railroad fails to explain whether and why the fact-intensive inquiry for as-applied preemption challenges should be considered as part of a complete preemption analysis under § 10501(b). We decline to define the precise contours of the complete preemption doctrine under the ICCTA. Even assuming that the complete preemption doctrine extends to as-applied preemption challenges, such as the one raised by the Railroad in this case, the Railroad has failed to demonstrate that the Louisiana scheme for enclosed estate owners unreasonably interferes with railroad operations. The fatal defect in the Railroad’s argument is that the Railroad fails to establish that any unreasonable interference with railroad operations is caused by operation or application of the Louisiana state law as opposed to the independent actions of private parties. The Railroad bears the burden of establishing that federal jurisdiction exists. The presumption against preemption applies with full force to this generally applicable state property law, even if applied to permit a private, at-grade railroad crossing. See In re Davis, 170 F.3d 475, 481 (5th Cir.1999) (en banc) (“Deference to our federalism" }, { "docid": "11879194", "title": "", "text": "948 F.2d 179 (5th Cir.1991) (affirming district court’s decision that state walkway requirement was preempted). We do not decide whether the complete preemption doctrine could ever apply in the context of the FRSA, because in this case it is clear that the complete preemption doctrine does not apply. The Railroad’s FRSA complete preemption claim fails for many of the same reasons as its ICCTA claim. First, the Railroad has failed to allege any safety issue under the FRSA that arises from the operation or application of Article 689 as opposed to the actions of private parties. Article 689 is silent on how a right of passage over the Railroad’s tracks should be implemented or how a crossing should be constructed. To the extent that the Railroad’s argument for complete preemption under the FRSA is somehow based on the increased costs incurred by the Railroad to maintain their tracks in accordance with federal safety standards, we note again that Article 689 contains a specific cost-shifting mechanism that could be applied to alleviate these concerns. The Railroad bears the burden of establishing the court’s jurisdiction, and we of course decline to presume that the Louisiana state courts would apply Article 689 in a manner that needlessly conflicts with federal safety standards for railroads. In addition, the Railroad has not demonstrated that there are any federal safety standards regulating the implementation of private, at-grade crossings. The Federal Railroad Administration (“FRA”), the administrative body charged with enforcing the FRSA, has acknowledged that private crossings are governed by — if any thing — state law, and not federal, law. See Safety of Private Highway-Rail Grade Crossings; Notice of Safety Inquiry, 71 Fed.Reg. 42716 (Dep’t of Transp. July 27, 2006). For these reasons, without deciding whether complete preemption under the FRSA might apply in other circumstances, we conclude that the Railroad has failed on the facts of this case to establish that the Louisiana statutory scheme for enclosed estate owners is completely preempted under the FRSA. D Finally, the Railroad argues that federal question jurisdiction is established because the Railroad’s claims implicate significant federal issues, citing" }, { "docid": "3104565", "title": "", "text": "primary policy maker on matters arising under the ICC-TA, and also that matters falling squarely under the ICCTA do not languish in state courts for lack of federal removal jurisdiction. Furthermore, when the text of a statute is susceptible of more than one reasonable meaning, we may look to legislative history to discern legislative intent. See United States v. Valle, 538 F.3d 341, 345 (5th Cir.2008). Here, legislative history suggests Congress did not intend § 10501(b) to preclude original (or removal) federal jurisdiction over claims arising under the ICCTA. For one, Congress was clear that § 10501(b) establishes the “complete preemption” of state economic regulation of railroads. H.R.Rep. No. 104-311, at 95-96, 1995 U.S.C.C.A.N. at 807, 808. Complete preemption and removal jurisdiction are simply two sides of the same coin: a finding of complete preemption “represents a conclusion that all claims on the topic arise under federal law, so that 28 U.S.C. § 1441 permits removal.” Pollitt v. Health Care Serv. Corp., 558 F.3d 615, 616 (7th Cir.2009); see also Barrois, 533 F.3d at 331 (“Complete preemption is a ‘jurisdictional doctrine.... ’ ”). In expressing its intent to completely preempt state economic regulation of railroads, Congress also was expressing its intent that claims attempting to enforce such state regulations would be removable. As the First Circuit recognized in Pejepscot, the basic purpose of the ICCTA is to federalize the regulation of rail transportation, not deprive the federal courts of jurisdiction. 215 F.3d at 204-05. Moreover, legislative history indicates that current § 11704(c)(1) was intended to “reenact[ ] the applicable rail portions of former section 11705” of the ICA. H.R. Conf. Rep. No. 104-422, at 195, 1995 U.S.C.C.A.N. at 880 (emphasis added). Current § 11704(c)(1) is almost identical to former § 11705(c)(1), and “civil actions against rail carriers under [former § 11705] were routinely brought in federal district court.” Pejepscot, 215 F.3d at 203; see also Atl. Coast Line, 383 U.S. at 579-80, 86 S.Ct. 1000 (recognizing ICA gives complainant choice of “bringing suit in a federal district court”); S. Pac. Transp. Co. v. San Antonio, Tex. by and through City" }, { "docid": "11879184", "title": "", "text": "to explain whether and why the fact-intensive inquiry for as-applied preemption challenges should be considered as part of a complete preemption analysis under § 10501(b). We decline to define the precise contours of the complete preemption doctrine under the ICCTA. Even assuming that the complete preemption doctrine extends to as-applied preemption challenges, such as the one raised by the Railroad in this case, the Railroad has failed to demonstrate that the Louisiana scheme for enclosed estate owners unreasonably interferes with railroad operations. The fatal defect in the Railroad’s argument is that the Railroad fails to establish that any unreasonable interference with railroad operations is caused by operation or application of the Louisiana state law as opposed to the independent actions of private parties. The Railroad bears the burden of establishing that federal jurisdiction exists. The presumption against preemption applies with full force to this generally applicable state property law, even if applied to permit a private, at-grade railroad crossing. See In re Davis, 170 F.3d 475, 481 (5th Cir.1999) (en banc) (“Deference to our federalism counsels a presumption that areas of law traditionally reserved to the states, like police powers or property law, are not to be disturbed absent the ‘clear and manifest purpose of Congress.’ ”); Lehigh Valley R.R. Co., 278 U.S. at 35, 49 S.Ct. 69 (“The care of grade crossings is peculiarly within the police power of the states.”). Louisiana Civil Code Article 689 provides: “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.” This provision operates as follows: [Article 689] is not self-executing. It does however confer on the owner of an enclosed estate a legal servitude on the subordinate property which entitles the owner to a forced passage for indemnity. The enclosed landowner has the right to go into court and demand that the passage be fixed, and the establishment of the location of the right of way either through agreement or by judicial" }, { "docid": "11879192", "title": "", "text": "be applied in a manner that unreasonably interferes with railroad operations. For these reasons, the Railroad has not established that § 10501(b) of the ICCTA completely preempts Article 689 and the Louisiana statutory scheme for enclosed estate owners. The Railroad has thus failed to establish jurisdiction on the basis of complete preemption under the ICC-TA. C The Railroad next argues that jurisdiction is proper because Article 689 is completely preempted by the Federal Railroad Safety Act (“FRSA”). The FRSA was enacted “to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons .... ” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The FRSA grants the Secretary of Transportation broad power to promulgate regulations “for all areas of railroad safety.” Id. at 662. The preemptive scope of the FRSA is outlined in 49 U.S.C. § 20106 and explained more fully by the Secretary’s regulation on preemption: Under 49 U.S.C. 20106, issuance of these regulations preempts any State law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local safety hazard; is not incompatible with a law, regulation, or order of the United States Government; and that does not impose an unreasonable burden on interstate commerce. 49 C.F.R. § 213.2. In Lundeen v. Canadian Pac. Ry. Co., the Eighth Circuit held that the plaintiffs’ state common law claim of negligent track inspection against a railroad was completely preempted by the FRSA. 447 F.3d 606, 614-15 (8th Cir.2006). Whether a specific state statute or regulation is preempted by the FRSA may require a fact-intensive inquiry to determine the nature, if any, of the conflict between state and federal regulations. See, e.g., Mo. Pac. R.R. Co. v. R.R. Comm’n of Tex., 833 F.2d 570, 575 (5th Cir.1987) (remanding for further factual development regarding the overlap between federal track regulations and state regulations regarding walkway requirements); see also Mo. Pac. R.R. Co. v. R.R. Comm’n of Tex.," }, { "docid": "3104552", "title": "", "text": "and to be completely exclusive. Any other construction would undermine the uni formity of Federal standards and risk the balkanization and subversion of the Federal scheme of minimal regulation. ... Id. at 96, 1995 U.S.C.C.A.N. at 808. The preemptive effect of § 10501(b) may not be limited to state economic regulation, but economic regulation is at the core of ICC-TA preemption. See Friberg, 267 F.3d at 443 (“[I]t appears manifest that Congress intended the ICCTA to further that exclusively federal [regulatory] effort, at least in the economic realm.”); see also Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 451 (D.C.Cir.2010) (recognizing that “the core of ICCTA preemption is ‘economic regulation’ ”); PCS Phosphate Co., Inc. v. Norfolk S. Corp., 559 F.3d 212, 219 (4th Cir.2009) (observing that voluntary agreements “do not fall into the core of economic regulation that the ICCTA was intended to preempt”). 3. The ICCTA completely preempts the Elams’ negligence per se claim. In Friberg v. Kansas City Southern Railway, we held the ICCTA at least defensively preempted a negligence per se claim based on a state antiblocking statute substantially identical to the Mississippi statute at issue in this case. 267 F.3d at 444. We reasoned that the ICCTA does not permit states to directly regulate “a railroad’s economic decisions such as those pertaining to train length, speed or scheduling.” Id. at 444. Sitting en banc, we confirmed this holding in Franks Investment v. Union Pacific Railroad. 593 F.3d at 411. The only issue here is whether Friberg applies to the context of complete preemption. We have already held the ICCTA completely preempts state law tort actions that “fall squarely” under § 10501(b). PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir.2005); Barrois, 533 F.3d at 331. We have not yet defined what it means to “fall squarely” under § 10501(b), but our cases provide some guidance. First, as discussed above, § 10501(b) expressly preempts only state laws that “manage or govern” rail transportation. Franks, 593 F.3d at 411; see also H.R. Conf. Rep. No. 104-422, at 167 (1995)," }, { "docid": "11879175", "title": "", "text": "intended the federal cause of action to be exclusive, the state law cause of action is completely preempted, and federal jurisdiction exists. The complete preemption doctrine must be distinguished from the concept of ordinary preemption. See Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272-73 (2d Cir.2005) (distinguishing “complete preemption” from “defensive preemption” or “ordinary preemption”). “Complete preemption is a ‘jurisdictional doctrine,’ while ordinary preemption simply declares the primacy of federal law, regardless of the forum or the claim.” Lontz v. Tharp, 413 F.3d 435, 440 (4th Cir.2005); Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000) (“ ‘Complete preemption,’ which creates federal removal jurisdiction, differs from more common ‘ordinary preemption’ (also known as ‘conflict preemption’), which does not.”); see also Sullivan, 424 F.3d at 272 n. 5 (suggesting that the term “jurisdictional preemption” would reflect more accurately the doctrine’s theoretical underpinnings). As a general matter, complete preemption is less common and more extraordinary than defensive or ordinary preemption. See Sullivan, 424 F.3d at 272-73 (“Many federal statutes — far more than support complete preemption-— will support a defendant’s argument that because federal law preempts state law, the defendant cannot be held liable under state law.”). We have held that the complete preemption doctrine applies to state causes of action that “fall squarely” under 49 U.S.C. § 10501(b) of the ICCTA. See PCI Transp., 418 F.3d at 540, 545 (concluding that the ICCTA provided the exclusive cause of action for the plaintiffs non-eon-tractual relief that effectively sought to regulate the operation of a short-line railroad’s switching yard and therefore fell squarely under § 10501(b)). Section 10501(b) provides: (b) The jurisdiction of the Board over— (1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided" } ]

[ { "docid": "5922080", "title": "", "text": "for the purpose of promoting “a more consistent exercise of discretion, . . .’’in granting parole. 28 C.F.R. § 2.20(a). Under the guidelines, an inmate’s salient factor score is computed to determine the potential risk of parole violation. The Commission then applies this score to the inmate’s severity offense rating to determine the customary parole release date. The Commission, however, pursuant to 18 U.S.C. § 4206(c), may depart from the guideline rangé in a particular case “if it determines there is good cause for so doing.” Id. Good cause has not been defined specifically in either the enabling legislation or the Commission’s own regulations. Courts, faced with the task of enunciating the parameters of this standard, give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary nor capricious. Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); See generally, U. S. ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 500 F.2d 925, 934 (2d Cir. 1974) vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974). Nevertheless, where a parole applicant is continued above the guideline period, courts have required the Commission to give reasons beyond those covered by the salient factor score and offense severity rating. In Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974), Judge Newman of this District stated that, It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond that guideline. Id. at 163. Similarly, a reason which merely restates factors already computed in the salient factor score is improper. Hamilton v. Chairman, U. S. Parole Comm’n, Civil No. 78-367 (D.Pa.1978); Westbrook v. Chairman, U. S. Parole Comm’n, Civil No. 77-918 (D.Pa.1977); Jacoby v. Arnold, 442 F.Supp. 144, 148 (M.D.Pa.1977). III. In view of the foregoing, the inquiry is twofold: whether a cognizable distinction exists between the reasons set forth in the amended Notice and" } ]

[ { "docid": "5922072", "title": "", "text": "for his release. This Court is unable to address the merits of petitioner’s claim since the Notice of Action, itself, is fatally defective. II. The Commission, seeking to quantify objectively the factors involved in the parole determination, has adopted pursuant to 18 U.S.C. § 4203(a) guidelines for the purpose of promoting “a more consistent exercise of discretion, and enabling fairer and more equitable decision making in granting parole.” 28 C.F.R. § 2.20(a). Under the guidelines an evaluation sheet must be prepared in each case for computing a salient factor score. This score serves as an aid in determining the parole prognosis (potential risk of parole violation). 28 C.F.R. § 2.20(e). Pursuant to the guidelines, the Commission then applies this score to petitioner’s severity offense rating to determine the customary parole release date. In the ordinary case, where a decision is reached to apply the guideline period after a finding that no special aggravating or mitigating factors are present, a Notice of Action containing the offense severity rating, salient factor score, period of incarceration, and applicable guideline period followed by the conclusion that a decision out side the guidelines is not warranted would constitute an entirely sufficient notice. See Lupo v. Norton, 371 F.Supp. 156, 162 (D.Conn.1974). Parole within these guidelines is not automatic, however, and the Commission may, upon a showing of good cause, go outside the guidelines. However, in these kinds of cases, the Commission is required to provide the prisoner “with particularity the reasons for its determination, including a summary of the information relied upon.” Further, the prisoner “shall receive a specific explanation of the factors which caused the Commission to reach a determination outside the guidelines.” [Emphasis added] 18 U.S.C. § 4206(c). Judge Newman in Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976), stated that the primary purpose of the requirement is to allow the prisoner and.a reviewing court to “determine that the case received individualized consideration, and not simply a pro forma recitation of the pertinent regulation.” Id. at 614. Inasmuch as the Commission in the present case went above the guideline period in denying petitioner parole," }, { "docid": "18817356", "title": "", "text": "of the Commission. The appropriate standard of review, set forth in Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir.1976), and followed in this district, provides that the district court “insure that the [Commission] has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, not based on impermissible considerations.” See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); Wiggins v. Nelson, 510 F.Supp. 666, 667 (D.Conn.1981); Brach v. Nelson, 472 F.Supp. 569, 575 (D.Conn. 1979). “[T]he inquiry is only whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino, supra, at 691. The Commission is not bound to adhere inexorably to its guidelines; it may reach decisions either above or below them. The Commission’s guidelines merely clarify the exercise of its administrative discretion. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir.1978); Grasso v. Norton, 520 F.2d 27, 34 (2d Cir.1975); Myrick v. Gunnell, 563 F.Supp. 51, 54 (D.Conn.1983). When the Commission decides, with “good cause,\" 18 U.S.C. § 4206(c) (1980), to go outside its guidelines, it must give the prisoner specific reasons different from those already relied on in determining the prisoner’s offense severity rating. Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn. 1980). The Commission has wide latitude in considering information relevant to its inquiry. See 28 C.F.R. § 2.19. Judgment on credibility of the evidence is vested solely in the Commission, and the Commission shall resolve disputes on accuracy of information by the preponderance of the evidence standard, that explanation which best accords with reason and probability. 28 C.F.R. § 2.19(c); Myrick v. Gunnell, supra, at 7; Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977). The Commission is entitled to reject petitioner’s testimony and consider information in the presentence report, in the sentencing hearing and in the Form 792. 18 U.S.C. § 4207; 28 C.F.R. § 2.19. Petitioner alleges that the Commission was in no position to judge the credibility of witnesses against him because it did not hear any testimony. Although" }, { "docid": "5152739", "title": "", "text": "claims that the Commission has failed to consider the favorable information available to it in reaching its decision to continue him 76 months beyond his guidelines. The Commission’s position apparently is that it has considered such information: its notices of action all have stated that it considered “all relevant factors and information presented.” It is not this Court’s place to reweigh the evidence the Commission considered, Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977), or to substitute the Court’s judgment for that of the Commission, Billiteri, supra. But the abundance of information favorable to petitioner and the magnitude of the difference between the period of incarceration the guidelines suggest and the period the Commission has chosen raise a strong inference that the Commission has failed to consider or give any weight at all to favorable information, in violation of 18 U.S.C. § 4207. The boilerplate language in the notices of action, quoted above, does nothing to dispel this inference. Petitioner next argues that the Commission’s statements of its reasons for continuing him beyond his guidelines are inadequate in themselves. He notes correctly that the statements contained in the Commission’s notices of December, 1977, and January, 1980, do no more than describe the offense for which he was convicted, in the terms that justified his designation as original jurisdiction in the first place. Cf. Randaccio v. Wilkinson, supra, 415 F.Supp. at 613-14 (statement reciting terms of 28 C.F.R. § 2.17(b)(2) inadequate to justify decision outside guidelines). Petitioner argues further: The statement of reasons is . inadequate because it fails to identify what Petitioner did to justify incarceration longer than his guidelines. . As this Court noted in Lupo v. Norton, [supra,] . . . “It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond that guideline.” The Commission’s Notices of Action in Petitioner’s case tell him only that he was convicted of a large-scale sophisticated conspiracy to distribute narcotics (with several eo-eonspirators and a hierarchy), a fact" }, { "docid": "22821597", "title": "", "text": "Solomon was the acknowledged “head.” While the appellant has denied certain facts concerning the smuggling operation, the facts remain that a smuggling conspiracy did exist and that the appellant’s offense was a part of this conspiracy. Because these significant factors in the Parole Commission’s determination have not been disputed on appeal, our review need not go any further. Whether certain statements in the presentence report or a hearing summary are correct we need not decide. Only the facts which constitute significant factors in the Commission’s decision are subject to our review. V. Finally, Solomon claims that the Parole Commission overlooked a copious supply of positive information which, if it had been properly considered, would have made him a much more favorable parole candidate. In order to properly review this alleged failure to consider positive information, Solomon urges this Court to create an exception to the limited standard of review which a reviewing court typically has over parole determinations. Solomon argues that when an “abundance” of favorable information exists, and when the information is coupled with a significant disparity between the prison time recommended by the Commission guidelines and the actual time served, a strong inference should be created that the Commission violated 18 U.S.C. § 4207 by failing to consider the positive information. In such instances, he argues, a reviewing court should apply a sufficiency of the evidence standard. As precedent for this broad scope of review, appellant cites Hearn v. Nelson, 496 F.Supp. 1111 (D.Conn. 1980), where a district court implicitly adopted such a standard. We respectfully decline the appellant’s invitation to adopt this broad standard of review. The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). See Persico v. United States Dept. of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill.1977), aff’d 582 F.2d 1286 (7th Cir. 1978)." }, { "docid": "14040365", "title": "", "text": "commission must apply the earlier regulations. C. Going Beyond the Guidelines As I noted earlier, the commission may decide to make a parole determination outside the guidelines. 28 C.F.R. § 2.20(c), (d). 18 U.S.C. § 4206(c) authorizes the commission to do so “if it determines there is good cause for doing so.” However, if it does this, it must furnish the prisoner with written notice stating with particularity the reasons for its determination, including a summary of the information relied on. Id. See generally Little v. Hadden, 504 F.Supp. 558, 562 (D.Colo.1980); Brach v. Nelson, 472 F.Supp. 569, 574 (D.Conn.1979). Several courts have held that the commission cannot use information to determine offense severity or salient factor score, and then use the same information as a justification for going beyond the guidelines. Little v. Hadden, 504 F.Supp. at 562; Brach v. Nelson, 472 F.Supp. at 574; United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144, 148 (M.D.Pa.1977). The usual approach is to include all of the proven offenses, whether dismissed or not, to determine the offense severity. Then none of these offenses can be considered as aggravating circumstances. An alternative would be to determine offense severity just from the offenses for which the prisoner pled or was found guilty, and then to consider the other offenses as aggravating circumstances. See generally Lupo v. Norton, 371 F.Supp. 156, 162-63 (D.Conn.1974). In any case, however, the same offense cannot be used for both purposes: It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reasons for confining a prisoner beyond that guideline period. Id. at 163. III. DISPOSITION OF THESE CASES A. Allen v. Hadden, Civil Action No. 81-K-1863 Petitioner Allen is currently serving sentences on a number of crimes for which he pled or was found guilty. All of the disputes in his present petition relate to the last offense, aiding and abetting the importation of marijuana into the United States. He states five general grounds for granting the writ: 1. The" }, { "docid": "5922081", "title": "", "text": "1974) vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974). Nevertheless, where a parole applicant is continued above the guideline period, courts have required the Commission to give reasons beyond those covered by the salient factor score and offense severity rating. In Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974), Judge Newman of this District stated that, It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond that guideline. Id. at 163. Similarly, a reason which merely restates factors already computed in the salient factor score is improper. Hamilton v. Chairman, U. S. Parole Comm’n, Civil No. 78-367 (D.Pa.1978); Westbrook v. Chairman, U. S. Parole Comm’n, Civil No. 77-918 (D.Pa.1977); Jacoby v. Arnold, 442 F.Supp. 144, 148 (M.D.Pa.1977). III. In view of the foregoing, the inquiry is twofold: whether a cognizable distinction exists between the reasons set forth in the amended Notice and the factors covered by the salient factor score and whether the Commission has adequately delineated good cause for its decision. Item A does not cover the nature of a parole applicant’s past offenses. This Court rejects petitioner’s argument that the Commission, by including only the number of past convictions in the salient factor score, implicitly intended to preclude the Commission from examining the nature of those past offenses. Past criminal activity is accepted as a reliable indicator of future conduct. Thus, considering the broad discretion afforded the Commission in determining good cause, it may rely upon the similarity of petitioner’s past convictions in finding that he is a particularly poor parole risk. Roach v. Bd. of Pardons & Parole, 503 F.2d 1367, 1368 (8th Cir. 1974); Scarpa v. U. S. Bd. of Parole, 477 F.2d 278, 281 (5th Cir. 1973). See generally, Billiteri v. U. S. Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). This Court finds unpersuasive, however, the Commission’s contention that it may rely upon petitioner’s state probation violation as an" }, { "docid": "14040351", "title": "", "text": "(10th Cir. 1977)). In determining a parole date, the commission may consider evidence of an offense for which the prisoner’s conviction was overturned, so long as the reversal was not based on a finding of innocence. Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 174 (10th Cir. 1980) (citing Dye v. United States Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977)). Likewise, the commission may consider allegations of criminal activity for which the prisoner has not even been charged. Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. at 4. II. SPECIFIC ISSUES IN THESE CASES A. Consideration of Dismissed Counts of the Indictment In keeping with the rule that the parole commission may utilize a broad information base in making its parole determination, most courts have upheld the commission’s consideration of offenses charged in counts of the indictment that are later dismissed. See, e.g., Billiteri v. U. S. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976); Narvaiz v. Day, 444 F.Supp. 36, 37-38 (W.D.Okla.1977); McArthur v. U. S. Board of Parole, 434 F.Supp. 163, 166-67 (S.D.Ind.1976), aff’d. mem., 559 F.2d 1226 (7th Cir. 1977); Manos v. U. S. Board of Parole, 399 F.Supp. 1103, 1105 (M.D.Pa.1975); Lupo v. Norton, 371 F.Supp. 156, 161-62 (D.Conn.1974). A few courts, however, have objected to this practice because it allows what is often the most important determination, the defendant’s actual period of incarceration, to be determined by the parole commission, rather than at a trial where all of the defendant’s constitutional safeguards are present. For example, in Pernetti v. United States, 21 Crim.L.Rep. 2033 (D.N.J. Mar. 3, 1977), appeal dismissed as moot, 605 F.2d 1196 (3d Cir. 1979), the court held that the parole commission’s consideration of offenses alleged in dismissed counts of the indictment denied the defendant due process. The court stated: The major premise underlying this Court’s opinion is the firmly established judicial maxim that a person is innocent until proven guilty. Based on the foregoing reasoning, then, it can be readily concluded that a plea of" }, { "docid": "22821598", "title": "", "text": "a significant disparity between the prison time recommended by the Commission guidelines and the actual time served, a strong inference should be created that the Commission violated 18 U.S.C. § 4207 by failing to consider the positive information. In such instances, he argues, a reviewing court should apply a sufficiency of the evidence standard. As precedent for this broad scope of review, appellant cites Hearn v. Nelson, 496 F.Supp. 1111 (D.Conn. 1980), where a district court implicitly adopted such a standard. We respectfully decline the appellant’s invitation to adopt this broad standard of review. The accepted standard of review of parole determinations is whether the decision constitutes an abuse of discretion. The authority to review Parole Commission decisions is thus limited. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). See Persico v. United States Dept. of Justice, 426 F.Supp. 1013, 1019 (E.D.Ill.1977), aff’d 582 F.2d 1286 (7th Cir. 1978). Courts have the authority to review decisions by the Commission which show an abuse of discretion. This review cannot be made without some inquiry into the evidence relied on by the Commission to support its expressed reasons for denying parole. In order to determine whether there has been an abuse of discretion, the appellant urges this Court to adopt a “sufficiency of the evidence” standard of review for factual situations such as presented in this case. However, this standard exceeds that envisaged by Congress. We choose to retain the traditional standard of review. A court of review need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons. The inquiry is not whether the Commission’s decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission’s conclusions embodied in its statement of reasons. McArthur v. United States Board of Parole, 434 F.Supp. 163, 166 (S.D.Ind.1976), aff’d" }, { "docid": "17016500", "title": "", "text": "petition be denied. Petitioner has filed a reply to Respondents’ answer and a “motion to include new information as addendum to habeas corpus action,” both of which have been considered by this Court. The scope of this Court’s review of a Parole Commission decision is narrow. Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir.1977). The standard of review is whether the Commission’s decision is arbitrary and capricious or an abuse of discretion. Id.; Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976). The scope of information the Parole Commission may consider in rendering parole decisions is broad. 18 U.S.C. § 4207 provides: In making a determination under this chapter (relating to release on parole) the Commission shall consider, if available and relevant: (1) reports and recommendations which the staff of the facility in which such prisoner is confined may make; (2) official reports of the prisoner’s prior criminal record, including a report or record of earlier probation and parole experiences; (3) presentence investigation reports; (4) recommendations regarding the prisoner’s parole made at the time of sentencing by the sentencing judge; and (5) reports of physical, mental, or psychiatric examination of the offender. There shall also be taken into consideration such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available. See also 28 C.F.R. § 2.19. The Parole Commission is not restricted to considering information only about the offense for which a prisoner was formally convicted, Christopher v. U.S. Board of Parole, 589 F.2d 924, 932 (7th Cir.1978), but may also consider information about the prisoner’s total offense behavior. Payton v. Thomas, 486 F.Supp. 64, 68 (S.D.N.Y.1980). I Petitioner’s first claim is that the Parole Commission’s finding that he was the ringleader of a terrorist group is based on conjecture and not on facts established at trial. This Court finds that the Commission’s finding was not based on conjecture but was instead based on a report regarding Petitioner submitted by the U.S. Attorney. The report, which is attached as Exhibit B to Respondents’ answer, states" }, { "docid": "18817355", "title": "", "text": "in reevaluating his parole prospects, see Notice of Action November 2, 1981, supra, he is being punished more harshly than the Commission guidelines, 28 C.F.R. § 2.20, would indicate. Even with the moderate severity rating given to his offense and affirmed by the National Commissioners, were his salient factor score zero, claims petitioner, the guidelines would indicate a period of incarceration of only 24 to 32 months, not six years. The Connecticut authorities’ persistent, forceful and ultimately successful eleventh hour campaign to keep Iuteri incarcerated is clearly regrettable. These unfortunate circumstances should not, however, sway the court in its review of the Commission’s actions unless it appears that the Commission tacitly and improperly permitted the vociferousness of these authorities’ desires to influence its calculation of a period of incarceration. Here, the court looks not to the propriety of the submissions, but rather to whether the Commission acted arbitrarily and capriciously in translating the information considered into a period of incarceration on the fifteen year sentence. This court notes its limited role in reviewing a decision of the Commission. The appropriate standard of review, set forth in Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir.1976), and followed in this district, provides that the district court “insure that the [Commission] has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, not based on impermissible considerations.” See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); Wiggins v. Nelson, 510 F.Supp. 666, 667 (D.Conn.1981); Brach v. Nelson, 472 F.Supp. 569, 575 (D.Conn. 1979). “[T]he inquiry is only whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its statement of reasons.” Zannino, supra, at 691. The Commission is not bound to adhere inexorably to its guidelines; it may reach decisions either above or below them. The Commission’s guidelines merely clarify the exercise of its administrative discretion. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir.1978); Grasso v. Norton, 520 F.2d 27, 34 (2d Cir.1975); Myrick v. Gunnell, 563 F.Supp. 51, 54 (D.Conn.1983). When" }, { "docid": "7008785", "title": "", "text": "has been convicted, without regard to either the length and type of the sentence actually imposed upon him by the court, the nature and circumstances surrounding the commission of the offense by the prisoner or the prisoner’s history and characteristics. The effect, he argues, is contrary to congressional intent and permits an unlawful resentencing by the Commission. We disagree. The guidelines fall well within the broad authority granted by Congress in 18 U.S.C. § 4203(a)(1) to the Commission. The Commission’s establishment of a system for estimating customary release dates, moreover, is rational and in accordance with both the criteria set forth in 18 U.S.C. § 4206(a) and the intent of Congress as expressed in the foregoing quoted portion of House Conference Report No. 94 — 838, supra. See, in accord, Moore v. Nelson, 611 F.2d 434, 439 (2d Cir. 1979); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977); Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978); Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977); Vanacore v. United States, 440 F.Supp. 442 (E.D.N.Y.1977); Richards v. Crawford, 437 F.Supp. 453 (D.Conn.1977); Dubois v. Wilkinson, Civ.No. B-77-129 (D.Conn. April 22,1977), affd. without opinion, 573 F.2d 1289. Although the guidelines on their face appear to be mechanical computations, the Regulation establishing them, 28 C.F.R. § 2.20, states that they are “merely guidelines” or non-binding “examples,” from which the Commission is free to depart after taking into consideration “mitigating or aggravating circumstances in a particular case,” and that they have been established for cases “with good institutional adjustment and program process.” Moreover, 28 C.F.R. § 2.19 mandates the Commission, in making a parole release determination, to consider, to the extent relevant and available, (1) reports and recommendations by the staff of the facility in which the prisoner is confined, (2) his prior criminal record, including earlier probation and parole reports, (3) all presentence investigation reports, (4) parole recommendations made at the time of sentence by the sentencing judge and prosecuting attorney, (5) reports on physical, mental and psychiatric examinations, and (6) any other information concerning the prisoner, including" }, { "docid": "5152738", "title": "", "text": "and to enforce this limitation, the Court “has authority to review a decision by the [Commission] . which shows an abuse of discretion . . ..” Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). The Parole Commission must consider relevant favorable as well as unfavorable information in making its decisions. 18 U.S.C. §§ 4206, 4207; 28 C.F.R. §§ 2.18, 2.19. It must also provide a prisoner with an adequate statement of the reasons for its decision, including reference to the evidence and sources relied upon, if it denies parole. 18 U.S.C. § 4206; 28 C.F.R. § 2.13. And if the Commission wishes to continue an inmate’s incarceration beyond the guidelines established for him, it must have and state specific reasons beyond those which brought the prisoner within the guidelines to begin with. Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144 (M.D.Pa.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974). In this case petitioner claims that the Commission has failed to consider the favorable information available to it in reaching its decision to continue him 76 months beyond his guidelines. The Commission’s position apparently is that it has considered such information: its notices of action all have stated that it considered “all relevant factors and information presented.” It is not this Court’s place to reweigh the evidence the Commission considered, Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977), or to substitute the Court’s judgment for that of the Commission, Billiteri, supra. But the abundance of information favorable to petitioner and the magnitude of the difference between the period of incarceration the guidelines suggest and the period the Commission has chosen raise a strong inference that the Commission has failed to consider or give any weight at all to favorable information, in violation of 18 U.S.C. § 4207. The boilerplate language in the notices of action, quoted above, does nothing to dispel this inference. Petitioner next argues that the Commission’s statements of its reasons for continuing him beyond his guidelines" }, { "docid": "14040364", "title": "", "text": "if a law is ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Id. at 29, 101 S.Ct. at 964 (citations omitted). The law need not, however, impair a “vested right” to violate the ex post facto prohibition. Id. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consumated. Id. at 30, 101 S.Ct. at 965. Thus, the parole commission may not retrospectively apply a new regulation if the result would be more onerous to the prisoner. Rodriguez v. U. S. Parole Commission, 594 F.2d at 173-76; see Hayward v. U. S. Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981). If the new regulations would have a more onerous effect on the prisoner than those in effect at the time he committed the crimes, then the commission must apply the earlier regulations. C. Going Beyond the Guidelines As I noted earlier, the commission may decide to make a parole determination outside the guidelines. 28 C.F.R. § 2.20(c), (d). 18 U.S.C. § 4206(c) authorizes the commission to do so “if it determines there is good cause for doing so.” However, if it does this, it must furnish the prisoner with written notice stating with particularity the reasons for its determination, including a summary of the information relied on. Id. See generally Little v. Hadden, 504 F.Supp. 558, 562 (D.Colo.1980); Brach v. Nelson, 472 F.Supp. 569, 574 (D.Conn.1979). Several courts have held that the commission cannot use information to determine offense severity or salient factor score, and then use the same information as a justification for going beyond the guidelines. Little v. Hadden, 504 F.Supp. at 562; Brach v. Nelson, 472 F.Supp. at 574; United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144, 148 (M.D.Pa.1977). The usual approach is to include all of the proven offenses, whether dismissed or not, to determine" }, { "docid": "18817357", "title": "", "text": "the Commission decides, with “good cause,\" 18 U.S.C. § 4206(c) (1980), to go outside its guidelines, it must give the prisoner specific reasons different from those already relied on in determining the prisoner’s offense severity rating. Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn. 1980). The Commission has wide latitude in considering information relevant to its inquiry. See 28 C.F.R. § 2.19. Judgment on credibility of the evidence is vested solely in the Commission, and the Commission shall resolve disputes on accuracy of information by the preponderance of the evidence standard, that explanation which best accords with reason and probability. 28 C.F.R. § 2.19(c); Myrick v. Gunnell, supra, at 7; Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977). The Commission is entitled to reject petitioner’s testimony and consider information in the presentence report, in the sentencing hearing and in the Form 792. 18 U.S.C. § 4207; 28 C.F.R. § 2.19. Petitioner alleges that the Commission was in no position to judge the credibility of witnesses against him because it did not hear any testimony. Although the Commission did not examine witnesses, it considered Judge King’s assessment of their credibility and of the weight that they should be accorded. At his hearing, petitioner, through counsel, was able to raise questions about that judgment. The Commission properly weighed the impact of the witnesses against Iuteri on the Satmary assault and Foote prostitution allegations in light of the outcome of the sentencing hearing. Judge King heard the evidence and subsequently imposed the maximum sentence of fifteen years. The difference in tone between the incomplete documentation considered at the initial parole hearing and the later considered information is dramatic and bolsters the Commission’s decision. A district court cannot substitute its judgment for that of the Commission simply because it disagrees. Billiteri, supra, at 946. In light of these allegations and the public protector function of the Commission, this court holds that the Commission properly assessed and explained the evidence against Iuteri and acted rationally though harshly in imposing a six-year period of incarceration. In conclusion, this court holds that petitioner’s due process rights were" }, { "docid": "2853528", "title": "", "text": "enabling legislation or the Commission’s own regulations. Courts, faced with the task of enunciating the parameters of this standard give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary or capricious. [Citations omitted] 472 F.Supp. at 574. In the instant case, the Commission’s notice of action declared that a decision above the guidelines appeared warranted because petitioner’s offense was “unusually sophisticated” in that he was involved “with at least 13 co-conspirators over a period of approximately four years in the distribution of heroin.” Petitioner was also identified “as being a significant narcotic dealer as well as occupying a managerial role in the operation.” [Pet. Ex C.] To justify a decision outside the guidelines, the reasons given in the notice of action must stand apart from the factors already considered in determining the offense severity rating. Brach v. Nelson, supra; Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974). Commission regulations mandate a “Greatest I” rating for opiate offenses involving “Possession with intent to distribute/sale [managerial or proprietary interest and a very large scale (e.g., offense involving more than 50 grams of 100% pure heroin or equivalent amount) ].” 28 C.F.R. § 2.20. The Notice of Action relied on the unusual sophistication and duration of the conspiracy as well as on the evidence that petitioner was a chief lieutenant to provide the separate aggravating factors that are required. Since the language of the notice adequately explained the decision to the petitioner and to this reviewing court, it may not be challenged. Stoller v. Tennant, supra; Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977). C. The Adequacy of Evidence Considered by the Commission The Commission must consider any relevant information regarding the prisoner in making a parole determination. 18 U.S.C. § 4207. Decisions on the relative weight to be given the evidence are “within the province of the commission’s broad discretion.” Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977). Petitioner argues that the Commission abused its discretion by “totally ignoring” petitioner’s favorable institutional record and promising release plans. Yet petitioner’s progress report, dated" }, { "docid": "5152737", "title": "", "text": "the Strike Force information.” This argument is without merit, since petitioner already has responded to the allegations contained in the Strike Force materials. The Court’s authority to review the Parole Commission’s decisions is limited, however. Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). As applied to an adult offender, the Commission’s guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). The Commission is not bound to adhere inexorably to the guidelines, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977), and its decisions may be either above or below them. Grasso v. Norton, [520 F.2d 27, 34 (2d Cir. 1975)]. Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978). Nevertheless, the Parole Commission’s discretion is limited by the constitutional concept of due process, United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970); and to enforce this limitation, the Court “has authority to review a decision by the [Commission] . which shows an abuse of discretion . . ..” Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976). The Parole Commission must consider relevant favorable as well as unfavorable information in making its decisions. 18 U.S.C. §§ 4206, 4207; 28 C.F.R. §§ 2.18, 2.19. It must also provide a prisoner with an adequate statement of the reasons for its decision, including reference to the evidence and sources relied upon, if it denies parole. 18 U.S.C. § 4206; 28 C.F.R. § 2.13. And if the Commission wishes to continue an inmate’s incarceration beyond the guidelines established for him, it must have and state specific reasons beyond those which brought the prisoner within the guidelines to begin with. Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144 (M.D.Pa.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974). In this case petitioner" }, { "docid": "5922079", "title": "", "text": "Petitioner, with counsel, now renews his initial challenge. He maintains that the amended Notice merely elaborates on the reasons set forth in the original Notice and that the Commission’s decision continues to rest upon petitioner’s prior convictions and his parole and probation status — two factors covered by the salient factor score under Items A and E. Petitioner alternatively contends that regardless of whether the Commission impermissibly doubled factors, it failed to set forth good cause for the decision. The Commission, however, maintains that Item A only designates points based on the number, not the nature, of past convictions and, therefore, the Commission can consider the similarity of those offenses in determining that petitioner particularly was a poor parole risk. The Commission also contends that since under Item E only one point is lost irrespective of the number of parole and probation violations involved, it can consider petitioner’s state probation violation as an additionally aggravating factor. II. Pursuant to the Congressional mandate set forth in 18 U.S.C. § 4203(a), the Com mission has established guidelines for the purpose of promoting “a more consistent exercise of discretion, . . .’’in granting parole. 28 C.F.R. § 2.20(a). Under the guidelines, an inmate’s salient factor score is computed to determine the potential risk of parole violation. The Commission then applies this score to the inmate’s severity offense rating to determine the customary parole release date. The Commission, however, pursuant to 18 U.S.C. § 4206(c), may depart from the guideline rangé in a particular case “if it determines there is good cause for so doing.” Id. Good cause has not been defined specifically in either the enabling legislation or the Commission’s own regulations. Courts, faced with the task of enunciating the parameters of this standard, give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary nor capricious. Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); See generally, U. S. ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 500 F.2d 925, 934 (2d Cir." }, { "docid": "2853529", "title": "", "text": "or proprietary interest and a very large scale (e.g., offense involving more than 50 grams of 100% pure heroin or equivalent amount) ].” 28 C.F.R. § 2.20. The Notice of Action relied on the unusual sophistication and duration of the conspiracy as well as on the evidence that petitioner was a chief lieutenant to provide the separate aggravating factors that are required. Since the language of the notice adequately explained the decision to the petitioner and to this reviewing court, it may not be challenged. Stoller v. Tennant, supra; Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977). C. The Adequacy of Evidence Considered by the Commission The Commission must consider any relevant information regarding the prisoner in making a parole determination. 18 U.S.C. § 4207. Decisions on the relative weight to be given the evidence are “within the province of the commission’s broad discretion.” Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977). Petitioner argues that the Commission abused its discretion by “totally ignoring” petitioner’s favorable institutional record and promising release plans. Yet petitioner’s progress report, dated April 1980 (Pet. Ex E), was presumably before the National Commission when they decided on the ten year reconsideration hearing in July of 1980. It is evident that the National Commissioners considered the “unusual sophistication” of petitioner’s criminal activity the most salient aspect of his record and that they gave more weight to his “managerial role” in the crime itself than to his institutional adjustment. The decision to extend petitioner’s imprisonment beyond the applicable guideline range does not represent a clear abuse of discretion. Albano v. Anderson, 472 F.Supp. 931 (M.D.Pa.1979). But see, Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn.1980). Petitioner further contends that the Commission relied on false and irrelevant information in making its decision. This assertion is not supported by the record. The Commission justifiably relied on petitioner’s pre-sentence report which detailed his involvement in the conspiracy. 18 U.S.C. § 4207. D. Meaningful Parole Consideration Petitioner claims that the referral of his case for an original jurisdiction decision violated his rights to meaningful parole consideration. Such an assertion is without merit. [S]uch" }, { "docid": "9690801", "title": "", "text": "approximately 120 months of his twenty-five year sentence. The Regional Commissioner disagreed with this recommendation and referred the matter to the National Commissioners, see 28 C.F.R. § 2.24(a), who denied parole and set off petitioner to a ten-year reconsideration date. When the Commission exceeds the guidelines it has promulgated for the anticipated length of a term of imprisonment to be served before parole, it must furnish something more than the standard reasons it would give for within-guideline parole denial. It must establish “good cause” justification for continued incarceration of the inmate. 18 U.S.C. § 4206(c). See Sacco v. United States Parole Commission, Unpublished No. 80-1530 (10th Cir. filed April 6, 1981); accord Solomon v. Else a, 676 F.2d 282, 286-287 (7th Cir.1982); Hayward v. United States Parole Commission, 659 F.2d 857, 861 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982); Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979). In establishing good cause, the Commission may not rely on reasons that are outside the scope of its authority to consider. Little v. Hadden, 504 F.Supp. 558, 562-63 (D.Colo.1980). Petitioner claims that the Commission considered murder charges of which petitioner was acquitted when it extended his incarceration period beyond the standard guidelines. Such reliance violates the Commission’s own regulations unless “reliable information” of guilt not introduced at trial is presented. See 28 C.F.R. § 2.19(c); see also Allen v. Hadden, 536 F.Supp. 586, 591 (D.Colo.1982) (describing information that may be used by Parole Board). Petitioner’s claim is supported by letters between the Commission and Bureau of Prisons personnel that indicate decisionmakers believed petitioner may really have been guilty of murder. Without a denial by the Commission, petitioner’s contention must be taken to be true. See Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1983). If petitioner’s claim is true, it shows that the Commission did not act upon good cause. Unless the Commission can rebut the allegation that it relied upon the murder charges, petitioner is entitled to" }, { "docid": "5922073", "title": "", "text": "guideline period followed by the conclusion that a decision out side the guidelines is not warranted would constitute an entirely sufficient notice. See Lupo v. Norton, 371 F.Supp. 156, 162 (D.Conn.1974). Parole within these guidelines is not automatic, however, and the Commission may, upon a showing of good cause, go outside the guidelines. However, in these kinds of cases, the Commission is required to provide the prisoner “with particularity the reasons for its determination, including a summary of the information relied upon.” Further, the prisoner “shall receive a specific explanation of the factors which caused the Commission to reach a determination outside the guidelines.” [Emphasis added] 18 U.S.C. § 4206(c). Judge Newman in Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976), stated that the primary purpose of the requirement is to allow the prisoner and.a reviewing court to “determine that the case received individualized consideration, and not simply a pro forma recitation of the pertinent regulation.” Id. at 614. Inasmuch as the Commission in the present case went above the guideline period in denying petitioner parole, this Court now focuses on whether the Notice of Action sufficiently sets forth the reasons for the decision of the Commission to permit this Court to render an informed decision concerning petitioner’s claim. In addition to the four elements normally included in the Notice of Action, the Commission, pursuant to the requirement, stated the reason for going beyond the guideline period: “A decision above the guidelines at this consideration appears warranted because you were on reparole at the time of the instant offense; have a history of similar offenses.” Petitioner contends that these factors are the same as those that are considered in computing the salient factor score. Under the salient factor score, a numerical value is attached to the number of past offenses and the status of parole at the time of the instant offense. The government contends, however, that the Notice of Action sufficiently sets forth the factors which justify continuing petitioner beyond the guideline period and that the factors stated are distinguishable from those considered in computing the salient factor score. With" } ]

[ { "docid": "22613811", "title": "", "text": "from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay, and accordingly, we vacate the judgment below. Griffin v. Illinois, 351 U. S. 12 (1956), marked a significant effort to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice. In holding that the failure to provide an indigent criminal defendant with a trial transcript at public expense in order to prosecute an appeal was a violation of the Equal Protection Clause, this Court declared that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Id., at 19. In the years since the Griffin case the Court has had frequent occasion to reaffirm allegiance to the basic command that justice be applied equally to all persons. Subsequent decisions of this Court have pointedly demonstrated that the passage of time has heightened rather than weakened the attempts to mitigate the disparate treatment of indigents in the criminal process. Applying the teaching of the Griffin case here, we conclude that an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense. A State has wide latitude in fixing the punishment for state crimes. Thus, appellant does not assert that Illinois could not have appropriately fixed the penalty, in the first instance, at one year and 101 days. Nor has the claim been advanced that the sentence imposed was excessive in light of the circumstances of the commission of this particular offense. However, once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency. It is clear, of course, that the sentence was not imposed upon appellant because of his indigency but because he had committed a crime. And the" } ]

[ { "docid": "4012082", "title": "", "text": "post bail. As a theoretical matter, one need not be indigent to be unable to post bail. The judge setting bail considers each defendant individually to determine the level of bail deemed necessary to satisfy the state’s regulatory interest in ensuring a defendant’s presence at trial. A person could have considerable assets, and yet be unable to post the level of bail that a judge has determined necessary to prevent flight. Although Vasquez could claim that indigents who were denied credit for pretrial confinement were treated disparately at sentencing from nonindigents, we find no basis in this record for such a distinction. The proper definition of the affected class in this case is persons who were subject to pretrial confinement because they could not post bail, and who were denied credit against their sentence for such pretrial confinement. Vasquez has not shown that as a member of this class he was denied credit and thereby served a longer sentence solely due to indigence, because nonindigents subject to pretrial confinement are theoretically also members of this class. Even if we assume arguendo that the operation of bail requirements discriminate in effect against indigents, see Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970), and that Vasquez could not post bail due to his indigence, thereby making him a member of a class of indigent persons who were held in pretrial confinement because they could not post bail, Vasquez’ theory is flawed for a second reason: Vasquez has not shown that he was denied a benefit due to his impecunity. He fails to meet the test articulated by the Supreme Court for determining whether a classification based on wealth violates the equal protection clause: The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were com pletely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 20," }, { "docid": "4012084", "title": "", "text": "93 S.Ct. 1278, 1289, 36 L.Ed.2d 16 (1973). Regardless of whether the standard of review is rational basis or strict scrutiny, Vasquez has failed to show that the sentencing judge invidiously denied any benefit that was available to others solely because he was indigent, or because he was a member of the putative class of persons who were subject to pretrial confinement. Any discrimination by denial of the benefit of bail does not necessarily extend to the sentencing phase in which the judge considers anew the background of each individual, including whether he was held in pretrial confinement, in light of the peno-logical interests of the state. The sentencing judge’s action here, considering the presentence time served and denying credit, did not amount to an impermissible classification denying Vasquez of his liberty interest. By considering the time Vasquez spent in jail in determining the length of sentence, the judge effectively put Vasquez in the same position as those who were released on bail — the total time during which liberty would be deprived in both cases is specifically considered by the judge. Requiring the judge to determine the sentence necessary to serve the state’s penological interests by disregarding the time previously served by the defendant, and then mechanically subtracting that time from the sentence given, would be an artificial and meaningless exercise. By considering the presentence time the judge actually equalizes the defendants’ treatment. Therefore, Vasquez has not shown that he was subjected to a longer prison sentence than a wealthier person punished for the same crime. There is no differential treatment for purposes of the equal protection clause. Vasquez mistakenly relies upon several Supreme Court cases to support his equal protection claim: Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (indigent’s probation revoked because of inability to pay fine); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (statute provides only for fines; indigent unable to pay traffic fines and imprisoned); and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (indigent failing to satisfy monetary" }, { "docid": "4468165", "title": "", "text": "542, 72 S.Ct. 525, 96 L.Ed. 547 (1952), the plaintiffs here were entitled to bail by virtue of the Florida Constitution, Art. I, § 14, Note 11, supra. The State of Florida has chosen to guarantee bail to its citizens except in the case of crimes of the most serious nature. The issue before us is whether the state is invidiously discriminating in administering the right it has conferred. Similarly, we are not called upon to decide whether any person is denied equal protection if he can make bail in some amount, but is unable to post the amount of bail set. We are confronted only with the question of the rights of indigents. As the Supreme Court has suggested in a different context, this distinction is not without constitutional significance: The individuals, or groups of individuals, who constituted the class • discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit . [Earlier cases] do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 20-22, 93 S.Ct. 1278, 1290-91, 36 L.Ed.2d 16, 35-36 (1973). Clearly, all but the most trifling money bail would be meaningless to the indigent who lacks funds even to pay a bail bondsman. “[I]n the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release”. Bandy v. United States, 81 S.Ct. 197, 198, 5 L.Ed.2d 218, 219 (1960) Douglas, J., sitting as Circuit Justice, ruling upon an application by a federal prisoner for release on personal recognizance pending appeal. The issue before us was framed concisely by Mr. Justice" }, { "docid": "7297569", "title": "", "text": "classification must be based on criteria related to the statute’s objective. Disabled Am. Veterans, 962 F.2d at 141. a. Standard of Review A law which does classify people may be subject to various levels of equal protection scrutiny. Strict scrutiny is applied to acts burdening fundamental rights or targeting suspect classes. Suspect classes are those identified by race, alienage, or national origin. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Fundamental rights include those derived explicitly or implicitly from the Constitution itself. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). To survive strict scrutiny, a statute must be suitably tailored to serve a compelling governmental interest. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Intermediate scrutiny has been applied to laws involving two quasi-suspect classes: legitimacy and gender. Under intermediate scrutiny, a law must be substantially related to an important governmental interest. Id. at 441, 105 S.Ct. 3249. Economic or social welfare legislation receives rational basis review. Disabled Am. Veterans, 962 F.2d at 141. Plaintiffs submit that their equal protection claim should invoke strict scrutiny because access to medically necessary and reasonable home health care is a “basic necessity,” the IPS burdens the class of indigents, and the law infringes on the elderly’s right to freely migrate. (Paper 26 at 7.) Failing that, Plaintiffs argue that a heightened level of scrutiny should pertain, as the IPS has a detrimental impact on rights verging on the fundamental or classes of persons who have suffered some societal prejudice but do not belong to suspect classes. Long Island Lighting Co. v. Cuomo, 666 F.Supp. 370, 414 (N.D.N.Y.1987). Neither strict nor intermediate scrutiny apply, as the IPS concerns no recognized suspect or quasi-suspeet class, nor any fundamental right. The IPS does not on its face classify the indigent or discriminate between states; it imposes a Medicare reimbursement scheme for all HHAs. As for Plaintiffs’ three theories, first, the Supreme Court found access to necessary and reasonable health care a “basic necessity,” but did not recognize" }, { "docid": "4012096", "title": "", "text": "impermissible criterion of sex was used). LOGAN, Circuit Judge, dissenting: I respectfully dissent. This case presents one narrow question: whether the Fourteenth Amendment requires a state court to give credit against the sentence of an indigent prisoner, who received less than the statutory maximum prison term, for the preconviction time that the prisoner served in jail because of his inability to post bail. I would hold that it does. In Williams v. Illinois, 399 U.S. 235, 236, 90 S.Ct. 2018, 2019, 26 L.Ed.2d 586 (1970), the Supreme Court held that the Equal Protection Clause prohibits a state from incarcerating a defendant for longer than the statutory maximum prison term because of his inability to pay the fine component of his sentence. Unlike the majority in the case at bar, the Supreme Court in Williams did not discuss whether the defendant belonged to a suspect class or Whether the imprisonment infringed on a fundamental right. The Williams court simply held that when an indigent prisoner would end up serving a prison term longer than the statutory maximum, converting a fine into imprisonment works an “invidious discrimination”: “By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.” Id. at 242, 90 S.Ct. at 2023 (footnote omitted). The following year, the Supreme Court, in Tate v. Short, 401 U.S. 395, 399, 91 S.Ct. 668, 671, 28 L.Ed.2d 130 (1971), held that a court could not subject a defendant to imprisonment for inability to pay a fine when the statute provided that a fine was the only possible punishment for those defendants able to pay. The Court held that this practice constituted the same invidious discrimination as the practice in Williams, because the defendant “was subjected to imprisonment solely because of his indigen-cy.” Id. at 397-98, 91 S.Ct. at 670. The Tate court stated its holding in terms broad enough to uphold petitioner’s" }, { "docid": "4468166", "title": "", "text": "of a meaningful opportunity to enjoy that benefit . [Earlier cases] do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 20-22, 93 S.Ct. 1278, 1290-91, 36 L.Ed.2d 16, 35-36 (1973). Clearly, all but the most trifling money bail would be meaningless to the indigent who lacks funds even to pay a bail bondsman. “[I]n the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release”. Bandy v. United States, 81 S.Ct. 197, 198, 5 L.Ed.2d 218, 219 (1960) Douglas, J., sitting as Circuit Justice, ruling upon an application by a federal prisoner for release on personal recognizance pending appeal. The issue before us was framed concisely by Mr. Justice Douglas in Bandy: [The] traditional right to freedom during trial and pending judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the device which we have borrowed to reconcile these conflicting interests. . It is assumed that the threat of forfeiture of one’s goods will be an effective deterrent to the temptation to break the conditions of one’s release. But this theory is based on the assumption that a defendant has property. To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law . . . Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom? Bandy v. United States, supra, 81 S.Ct. at 198. IV. FRAMEWORK OF ANALYSIS Traditional equal protection analysis grants great deference to legislative classifications. If “the distinctions drawn have some basis in practical experience”, South Carolina v. Katzenbach, 383 U.S. 301," }, { "docid": "745644", "title": "", "text": "could not pay for counsel from their own resources and who had no other way of gaining representation on direct appeals were denied equal protection of the law. Equal protection does not imply the abolition of differences created by wealth. Enabling a person to have access to a necessary service or program neither assures him the same access which others have nor requires that any burden imposed be proportioned to his individual circumstances. Thus, Douglas does not stand for the proposition that indigents must be provided with the best lawyers. This principle is best illustrated by Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). In Williams v. Illinois the Court held that a person could not be imprisoned because he was unable to pay a fine. In Tate v. Short the Court stated that the same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. 401 U.S. at 398, 91 S.Ct. at 671, quoting, Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d 773 (1970) (per curiam). The equal protection clause does not require “that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens.” San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 22, 93 S.Ct. 1278, 1290, 36 L.Ed.2d 16 (1973). Like Williams and Tate, the undocumented children do not claim that the burden is heavier because of their indigency. They are prevented from attending school because they" }, { "docid": "6802825", "title": "", "text": "governing an award of fees in this case. Accordingly, I conclude that § 1997e(d)(2) is not unconstitutionally vague. IV. Plaintiffs Equal Protection Challenge A. Generally Second, plaintiff argues that section 803 violates the Equal Protection Clause because it discriminates between prisoners and non-prisoners. Plaintiff argues that heightened scrutiny is appropriate “because it relates to an essential right—the right to counsel.” Pl.’s Reply Br., at 4, and that even if rational basis review is applied the provision fails. I conclude that heightened scrutiny is not appropriate. As the Supreme Court’s cases make clear, strict scrutiny is applicable only where the regulation being challenged “operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution!.]” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); see also, Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Regents of University of Cal. v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The first category is inapplicable here because “indigent prisoners are not a suspect class.” Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir.1999) (citing Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)); accord Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir.1998) (citing Harris, supra); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997). Nor is a fundamental right implicated by § 1997e(d)(2), contrary to plaintiffs argument. Although there is fundamental constitutional right to counsel in criminal cases, see U.S. Const. amend. VI, there is “no constitutional right to appointed counsel in a civil case.” Abdur-Rahman v. Michigan Dep’t of Corrections, 65 F.3d 489, 492 (6th Cir.1995). Accordingly, because § 1997e(d)(2) burdens neither a suspect class of persons nor a fundamental right, it is subject only to rational basis review. Nevertheless, I conclude that § 1997e(d)(2) is unconstitutional even under the deferential rational basis review. Under this review, a law is valid if it “rationally furthers a legitimate [governmental] interest.” Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326; accord" }, { "docid": "7287296", "title": "", "text": "in Castillo — Felix. Thus, section 1254(e)’s restrictions on voluntary departure do not involve a “fundamental right.” It is equally plain that section 1254(e)’s focus on an alien’s ability to pay his expenses of voluntary departure does not create a “suspect classification” which demands strict scrutiny. Classifications based on wealth are suspect only when (1) individuals are completely unable to pay for some desired benefit because of their impecunity, and (2) as a consequence, they sustain “an absolute deprivation of a meaningful opportunity to enjoy that benefit.” San Antonio School Dist. v. Rodriguez, supra, 411 U.S. at 20, 93 S.Ct. at 1290; Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250, 253-54 (9th Cir. 1974). The benefit at issue in section 1254(e) is voluntary departure. The immigration laws, however, do not absolutely deprive indigent aliens of this opportunity. Prior to the institution of deportation proceedings, qualified aliens may seek voluntary departure at government expense pursuant to section 1252(b). In this regard, the Attorney General is entrusted with a wide range of discretion to determine eligibility for voluntary departure. Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979). The Attorney General’s exercise of discretion whether to grant voluntary departure at government expense in such eases does not depend upon a deportable alien’s wealth; indeed, section 1252(b) explicitly provides for voluntary departure at government expense if the Attorney General deems it in the best interests of the United States. The Attorney General is thus empowered to ease the burden on deserving indigent deportable aliens by foregoing deportation proceedings and then furnishing the expenses of voluntary departure. It is true that voluntary departure is often precluded for the class of indigent aliens “under deportation proceedings.” But the chief distinguishing characteristic of this class is that, in the judgment of the Attorney General, its members’ immigration-law violations are egregious enough to have required formal deportation proceedings. The class members’ ineligibility for voluntary departure thus stems as much from culpability as from poverty. Under these circumstances, indigent aliens are not absolutely deprived of voluntary departure on grounds of impecunity. Section 1254(e)" }, { "docid": "17390230", "title": "", "text": "unwanted consequences does not mean that the beneficiary of the coverage has thereby been denied the equal protection of the laws. The eligibility criteria of the Vaccine Act must be analyzed under the “rational basis” standard, not the “strict scrutiny” test that is applied in equal protection eases when fundamental rights are at stake or when the government acts on the basis of a suspect classification. In the first place, the Vaccine Act does not implicate any “fundamental right,” for a “noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status.” Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522 (1975). The cases of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), on which amicus curiae relies, do not support the appellants’ constitutional argument, as those cases hold only that a State may not disqualify indigents from enjoying certain benefits, such as a divorce (Boddie) or the blood test that is required to defend against a state-sponsored paternity suit (Little), by denying those benefits to anyone who cannot pay the required fee. The rationale of those cases has never been extended to a monetary benefit program such as the Vaccine Act. Nor has the denial of eligibility for a monetary benefit program been regarded as an infringement of the right to rear and care for children, even though such programs may have a significant impact on a claimant’s ability to provide for his or her children. See Weinberger v. Salfi, 422 U.S. at 768-73, 95 S.Ct. at 2468-71; Dandridge v. Williams, 397 U.S. 471, 485-87, 90 S.Ct. 1153, 1161-63, 25 L.Ed.2d 491 (1970). Second, the fact that the statute may have a disparate impact on indigents does not call for heightened scrutiny under equal protection principles. See Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 470-71, 97 S.Ct. 2376, 2380-81, 53 L.Ed.2d 484 (1977); San Antonio Indep. School Dist." }, { "docid": "745645", "title": "", "text": "whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. 401 U.S. at 398, 91 S.Ct. at 671, quoting, Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d 773 (1970) (per curiam). The equal protection clause does not require “that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens.” San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 22, 93 S.Ct. 1278, 1290, 36 L.Ed.2d 16 (1973). Like Williams and Tate, the undocumented children do not claim that the burden is heavier because of their indigency. They are prevented from attending school because they are unable to pay. In cases after Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Supreme Court has carefully scrutinized statutes which would not have burdened indigents but for their complete inability to pay. In a case like Rodriguez, the circumstances are quite different. The plaintiffs in that case claimed that they received a poorer quality education because they were less wealthy. The states are not required to insure absolute equality which exists only hypothetically. On the other hand, absent sufficient justification, states may not permit some persons to benefit from certain state services and to be free from certain burdens while others are barred completely because they cannot pay. The form of “wealth discrimination” upheld in Rodriguez is not encountered in this case. Accordingly, the court concludes that a state law which operates to deprive absolutely children of education when they are indigent should be scrutinized with care. 3. Innocent Children Section 21.031 penalizes children because of acts committed by their parents. In Doe v." }, { "docid": "5485295", "title": "", "text": "the Maldonados were likely to succeed on the legal merits of their claim, it erred in granting the injunction. Because the Commonwealth limits its appeal to the merits issue, we need only address the propriety of the district court’s legal conclusions. B. Under the Equal Protection clause, no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Pennsylvania’s twotier act warrants equal protection analysis because it classifies bona fide residents of the state into two groups when determining welfare benefits. In determining the extent of cash welfare benefits, Pennsylvania created two classes of indigent residents indistinguishable from each other except that one is composed of residents who have resided in the state a year or more, and the other of residents who have resided in the state less than a year. Even though a state has created a classification, not all classifications are per se unconstitutional or automatically subject to heightened judicial scrutiny. If Pennsylvania’s durational residency classification “ ‘neither burdens a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.’ ” See Vacco v. Quill, 521 U.S. 793, -, 117 S.Ct. 2293, 2297, 138 L.Ed.2d 834 (1997) (quoting Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)); see also San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). However, if the two-tier scheme is drawn on suspect lines or does sufficiently burden a fundamental right, it is subject to strict scrutiny and will pass constitutional muster only if it is narrowly tailored to serve a compelling state interest. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Commonwealth argues that the district court correctly held that Pennsylvania’s two-tier durational residence requirement does not penalize the plaintiffs’ fundamental right to travel or their right to equal protection, and" }, { "docid": "21985774", "title": "", "text": "though it may cut across equitable considerations. Id. at 858. General Motors also contends that it would violate equal protection to deny it the claim against Corn Bros., Inc. It contends that if plaintiff’s employer had less than five employees, the employees would not fall under the mandatory provisions of the Workmen’s Compensation Act, Ga.Code Ann. § 114-107, thus, the third-party claim could be maintained. Whereas, in this case, Corn Bros., Inc. has more than five employees so it is under required coverage, thus foreclosing General Motors’ third-party complaint. General Motors contends this five employee statutory threshold has the relative wealth of large vis-a^vis small employers as its prime underpinning; therefore, the strict judicial scrutiny test in equal protection analysis must be applied. General Motors’ contentions relative to this point strain the concept of equal protection. First, in considering classifications based upon wealth, a broad brush claim such as here, assuming that lack of wealth is the thing being discriminated against cannot be made. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Second, the basic concept embodied in the denial of equal protection to a discriminated class based on wealth is that the classification must discriminate against the poor. Where classifications based on wealth have been stricken down, the Court has not dealt with relative wealths but with indigents. Where the classifications made have had the characteristic of making an indigent unable to pay for some desired benefit, and as a consequence the indigent sustains an absolute deprivation of a realistic opportunity to enjoy that benefit, then the classification with respect to wealth is impermissible. See Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also San Antonio School District v. Rodriguez, supra. There is no absolute deprivation of a benefit in this case nor is" }, { "docid": "4468173", "title": "", "text": "Griffin opened the door to equal protection attacks on procedures which, although nondiscriminatory on their face, in effect confront the indigent defendant with the “illusory choice” of paying a fee he cannot afford or forfeiting an opportunity available to those who can pay: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has”. Id. at 19, 76 S.Ct. at 591, 100 L.Ed. at 899. The Court has extended this principle to include a situation where the amount of money a man has determines whether he is imprisoned for an offense: [T]he Constitution prohibits a State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 671, 28 L.Ed.2d 130, 133 (1971). Moreover, as Chief Justice Burger noted in Williams, “the passage of time has heightened rather than weakened the attempts to mitigate the disparate treatment of indigents in the criminal process”. 399 U.S. at 241, 90 S.Ct. at 2022, 26 L.Ed.2d at 593. We conclude from these authorities that the wealth classification in the instant case warrants close judicial scrutiny. Strict scrutiny is appropriate also because the inability to raise money bail necessarily affects fundamental rights of the indigent defendant. Foremost among these rights is the presumption of innocence. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). The Supreme Court observed in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951): “From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker," }, { "docid": "4951135", "title": "", "text": "principles require the State to assert a compelling reason to justify disparate treatment of indigents and nonindigents when, as here, that difference interferes only with the constitutional rights of indigents. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 1294-95, 36 L.Ed.2d 16 (1973) (when a statute differentiating on the basis of wealth interferes in the exercise of a fundamental right, strict scrutiny applies); Rinaldi, 384 U.S. at 309, 86 S.Ct. at 1499-1500; see generally Cleburne v. Cleburne Living Center Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (strict scrutiny requires that a law be “suitably tailored to serve a compelling state interest” in order to survive). “Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty.” Ross, 417 U.S. at 611, 94 S.Ct. at 2444. 2 We conclude that the State’s reasons do not provide sufficient justification for violating Miller’s constitutional rights. On the whole, we find the State’s logic less than compelling and somewhat arbitrary. The Maryland Court of Appeals found the requirement that all indigent appellants must seek services through the public defender’s office justified by the State’s objective of protecting the resources that it has set aside for indigent defendants. To that end, the State has also asserted a desire to encourage competent legal representation for poor defendants and an administrative goal of easing recovery of costs from those indigent defendants who later acquire funds. While all of these reasons are certainly admirable, they simply do not warrant unnecessary infringement upon an indigent’s ability to exercise his constitutional rights. In circumstances such as those at bar, where an indigent appellant has successfully retained counsel at no cost to himself or the State, the conservation rationale disappears. When there is no need for appointed counsel, the explanation that forcing all indigents to seek public representation will protect state resources is nonsensical. If properly applied, the rule will force all indigents seeking to pursue a direct appeal to become clients of the state public" }, { "docid": "7297570", "title": "", "text": "review. Disabled Am. Veterans, 962 F.2d at 141. Plaintiffs submit that their equal protection claim should invoke strict scrutiny because access to medically necessary and reasonable home health care is a “basic necessity,” the IPS burdens the class of indigents, and the law infringes on the elderly’s right to freely migrate. (Paper 26 at 7.) Failing that, Plaintiffs argue that a heightened level of scrutiny should pertain, as the IPS has a detrimental impact on rights verging on the fundamental or classes of persons who have suffered some societal prejudice but do not belong to suspect classes. Long Island Lighting Co. v. Cuomo, 666 F.Supp. 370, 414 (N.D.N.Y.1987). Neither strict nor intermediate scrutiny apply, as the IPS concerns no recognized suspect or quasi-suspeet class, nor any fundamental right. The IPS does not on its face classify the indigent or discriminate between states; it imposes a Medicare reimbursement scheme for all HHAs. As for Plaintiffs’ three theories, first, the Supreme Court found access to necessary and reasonable health care a “basic necessity,” but did not recognize an independent right to such services. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 259, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). Rather, this statement came within the discussion of the right to travel. Id. Second, while laws classifying on the basis of wealth may draw closer attention than others, the indigent are not a suspect or quasi-suspect class. San Antonio Indep. Sch. Dist., 411 U.S. at 28-29, 93 S.Ct. 1278. Third, the connection to the right to travel is tenuous. The challenged statute is not a state law separating one state from others, as in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (invalidating three state laws as violative of the right to travel), but a Congressional act enforced nationwide. This law implements the same reimbursement system in all states. While Vermont HHAs may suffer worse than those of other states because they are all low cost, nonprofit agencies, all states cannot be readily broken down into clear winners and losers under the IPS. That nineteen states stand to" }, { "docid": "4012083", "title": "", "text": "class. Even if we assume arguendo that the operation of bail requirements discriminate in effect against indigents, see Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970), and that Vasquez could not post bail due to his indigence, thereby making him a member of a class of indigent persons who were held in pretrial confinement because they could not post bail, Vasquez’ theory is flawed for a second reason: Vasquez has not shown that he was denied a benefit due to his impecunity. He fails to meet the test articulated by the Supreme Court for determining whether a classification based on wealth violates the equal protection clause: The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were com pletely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 20, 93 S.Ct. 1278, 1289, 36 L.Ed.2d 16 (1973). Regardless of whether the standard of review is rational basis or strict scrutiny, Vasquez has failed to show that the sentencing judge invidiously denied any benefit that was available to others solely because he was indigent, or because he was a member of the putative class of persons who were subject to pretrial confinement. Any discrimination by denial of the benefit of bail does not necessarily extend to the sentencing phase in which the judge considers anew the background of each individual, including whether he was held in pretrial confinement, in light of the peno-logical interests of the state. The sentencing judge’s action here, considering the presentence time served and denying credit, did not amount to an impermissible classification denying Vasquez of his liberty interest. By considering the time Vasquez spent in jail in determining the length of sentence, the judge effectively put Vasquez in the same position as those who were released on bail — the total time during which liberty would be deprived in both" }, { "docid": "7677588", "title": "", "text": "the proper standard under which to review the classification and then analyze the purpose of the legislation to determine whether it satisfies the standard. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980); Chrysler Corp. v. Texas Motor Vehicle Comm’n, 755 F.2d 1192 (5th Cir.1985). Strict scrutiny is required if the legislative classification operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Otherwise, the legislative classification need only bear a rational relation to a legitimate governmental purpose. Torres, 48 F.3d at 891. The EAJA provision classifies according to wealth which alone is not a suspect criterion. San Antonio Indep. Sch. Dist., 411 U.S. at 28, 93 S.Ct. at 1294; Chrysler Corp., 755 F.2d at 1203. Therefore, we review the provision under strict scrutiny only if it impinges on a fundamental right. A fundamental right for equal protection purposes is one that is explicitly or implicitly protected by the Constitution. San Antonio Indep. Sch. Dist., 411 U.S. at 29, 93 S.Ct. at 1294-95. Petitioner argues that the net worth provision violates one of his fundamental rights, his First Amendment right of access to courts. In support, petitioner relies on Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) where indigent criminal defendants could not be heard in court because they could not pay filing and transcript fees. In those cases, the Supreme Court recognized a duty of government to equalize access to courts by assisting the poor. Those who are not poor have no need for similar equalization. In the absence of legislation providing otherwise, litigants must pay their own attorney’s fees. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Petitioner was not denied access to court; he is merely required to pay for that access. The" }, { "docid": "19317863", "title": "", "text": "Id. at 37, 93 S.Ct. at 1299. See also Mills v. Board of Education, 348 F.Supp. 866, 876 (D.D.C.1972). An additional indication that heightened scrutiny may be appropriate arises from the contention that the challenged policy of charging tuition to undocumented children constitutes discrimination on the basis of wealth. Relatively wealthy undocumented children are able to attend school despite the Tyler I.S.D. policy — two such children are actually doing so — , while poor undocumented children are excluded. In Rodriguez, the Court distinguished prior eases in which the class discriminated against “shared two” distinguishing characteristics: “because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” 411 U.S. at 20, 93 S.Ct. at 1290. Such absolute deprivations imposed only on poor people have long been considered deserving of judicial solicitude, see, e. g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1958), and such a tuition requirement was explicitly distinguished in Rodriguez when the Court declared that the existence of “a clearly defined class of ‘poor’ people” would “present a far more compelling set of circumstances for judicial assistance” than the San Antonio case itself. 411 U.S. at 25 n. 60, 93 S.Ct. at 1292. Similarly, in Shapiro v. Thompson, 394 U.S. at 633, 89 S.Ct. at 1330, the Court observed that a state “could not, for example, reduce expenditures for education by barring indigent children from its schools.” Furthermore, although it is not inaccurate to characterize section 21.031 as “state regulation in the social and economic field,” Dandridge v. Williams, 397 U.S. at 484, 90 S.Ct. at 1161, as defendants urge, this case does not follow the pattern of those in which such a characterization has triggered relaxed rather than heightened review. In Dandridge, as in Rodriguez, the deprivation was relative rather than absolute, i. e., some families received less aid in proportion to the number of children than others, but no discrete class of needy families was completely cut off from benefits. See" }, { "docid": "22718043", "title": "", "text": "The individuals, or groups of individuals, who constituted .the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois, 351 U. S. 12 (1956), and its progeny, the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some “adequate substitute” for a full stenographic transcript. Britt v. North Carolina, 404 U. S. 226, 228 (1971); Gardner v. California, 393 U. S. 367 (1969); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958). Likewise, in Douglas v. California, 372 U. S. 353 (1963), a decision establishing an indigent defendant’s right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy. Williams v. Illinois, 399 U. S. 235 (1970), and Tate v. Short, 401 U. S. 395 (1971), struck down criminal penalties that subjected indigents to incarceration simply be cause of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom" } ]

[ { "docid": "18949665", "title": "", "text": "Justice Alito delivered the opinion of the Court. Chapter 13 of the Bankruptcy Code provides bankruptcy protection to “individual[s] with regular income” whose debts fall within statutory limits. 11 U. S. C. §§ 101(30), 109(e). Unlike debtors who file under Chapter 7 and must liquidate their nonexempt assets in order to pay creditors, see §§ 704(a)(1), 726, Chapter 13 debtors are permitted to keep their property, but they must agree to a court-approved plan under which they pay creditors out of their future income, see §§ 1306(b), 1321,1322(a)(1), 1328(a). A bankruptcy trustee oversees the filing and execution of a Chapter 13 debtor’s plan. § 1322(a)(1); see also 28 U. S. C. § 586(a)(3). Section 1325 of Title 11 specifies circumstances under which a bankruptcy court “shall” and “may not” confirm a plan. §§ 1325(a), (b). If an unsecured creditor or the bankruptcy trustee objects to confirmation, § 1325(b)(1) requires the debtor either to pay unsecured creditors in full or to pay all “projected disposable income” to be received by the debtor over the duration of the plan. We granted certiorari to decide how a bankruptcy court should calculate a debtor’s “projected disposable income.” Some lower courts have taken what the parties term the “mechanical approach,” while most have adopted what has been called the “forward-looking approach.” We hold that the “forward-looking approach” is correct. I As previously noted, § 1325 provides that if a trustee or an unsecured creditor objects to a Chapter 13 debtor’s plan, a bankruptcy court may not approve the plan unless it provides for the full repayment of unsecured claims or “provides that all of the debtor’s projected disposable income to be received” over the duration of the plan “will be applied to make payments” in accordance with the terms of the plan. 11 U. S. C. § 1325(b)(1); see also § 1325(b)(1) (2000 ed.). Before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 119 Stat. 23, the Bankruptcy Code (Code) loosely defined “disposable income” as “income which is received by the debtor and which is not reasonably necessary to" } ]

[ { "docid": "14234714", "title": "", "text": "to do so “would deny creditors payments that the debtor could easily make.” Id. at 2476. In other words, the statute is meant to allow creditors to receive increased payments from debtors whose earnings happen to increase. Lan-ning involved pre-confirmation adjustments to plan payments, “to account for known or virtually certain changes” in a debtor’s income. Id. at 2475. But the same logic persuades us that Congress intended § 1325(b)(1)(B) to ensure a plan duration that gives meaning to § 1329’s modification procedure as a mechanism for posi-confirmation adjustments for unforeseen increases in a debtor’s income. That mechanism will achieve its purpose most effectively if the Chapter 13 plan has a minimum duration within which modification is possible. Accordingly, the policy that underlies Lanning also supports our reading of § 1325(b)(1)(B). III. Conclusion In summary, we hold that a bankruptcy court may confirm a Chapter 13 plan under 11 U.S.C. § 1325(b)(1)(B) only if the plan’s duration is at least as long as the applicable commitment period provided by § 1325(b)(4). Accordingly, we overrule Kagenveama’s holding regarding the meaning of “applicable commitment period” and affirm the bankruptcy court’s ruling. The mandate shall issue forthwith. AFFIRMED. . The Trustee has never questioned Debtors' good faith in proposing the plan. See 11 U.S.C. § 1325(a)(3) (setting forth requirement of the debtors’ good faith). . See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (holding that a three judge panel is not bound by prior circuit precedent if an intervening decision of a higher authority \"undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). . Debtors do not dispute the increase from $122 to $148 per month. . We review de novo issues of statutory construction, including a bankruptcy court's interpretation of the Bankruptcy Code. Samson v. W. Capital Partners, LLC (In re Blixseth), 684 F.3d 865, 869 (9th Cir.2012) (per cu-riam). . Our interpretation of § 1325(b)(1)(B) does not render that provision redundant with § 1322(d), which sets forth the maximum periods of time for a Chapter 13" }, { "docid": "14234724", "title": "", "text": "(N.D.Tx.2009). Other courts have endorsed the monetary approach, where debtors contribute a set amount of money in a time period that may be shorter than the applicable commitment period. This approach has been endorsed by district courts in the Second and Third Circuits. See In re Green, 378 B.R. 30 (N.D.N.Y.2007); In re Vidal, 418 B.R. 135 (M.D.Pa.2009). I continue to endorse the hybrid approach we endorsed in Kagenveama and in the original Flores opinion. Under that approach, “the ‘applicable commitment period’ sets the minimum temporal duration of a plan, but it is inapplicable to a plan submitted ... by a debtor with no ‘projected disposable income.’ ” Danielson v. Flores, 692 F.3d 1021, 1027 (9th Cir.2012). The Chapter 13 “applicable commitment period” does not explicitly apply to debtors who qualify for Chapter 13 bankruptcy but have no projected disposable income. The majority concludes, however, that the “applicable commitment period” should determine the requisite length of a Chapter 13 plan for all debtors, whether or not they have projected disposable income. The majority disregards the portion of § 1325(b)(1)(B) that ties the “applicable commitment period” to the period of time when projected disposable income is supposed to be distributed to unsecured creditors. Under § 1325(b)(1)(B), the bankruptcy court may not approve the plan unless “the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period ... will be applied to make payments to unsecured creditors under the plan.” By doing so, the majority interprets § 1325(b)(1)(B) to say that when a trustee objects to a Chapter 13 plan, the bankruptcy court may not approve the plan unless “the plan provides that all of the debtor’s [Chapter 13 payments ] to be received in the applicable commitment period ... will be applied to make payments to unsecured creditors under the plan.” § 1325(b)(1)(B). The majority’s reading of § 1325(b)(1)(B) is at odds with the provision’s plain language. A debtor’s payments under a Chapter 13 bankruptcy plan are different than the disposable income a debtor is projected to earn over a period of years." }, { "docid": "20453220", "title": "", "text": "Opinion by Judge CHEN; Dissent by Judge GRABER. OPINION CHEN, District Judge: I. INTRODUCTION This bankruptcy appeal concerns confirmation of a Chapter 13 plan of reorganization. The debtors, Cesar and Ana Flores, proposed a three-year plan. Rod Daniel-son, the Chapter 13 Trustee (“Trustee”), objected and argued that a five-year plan was required. The relevant legal question is whether, under 11 U.S.C. § 1325(b), a debtor with no “projected disposable income” may confirm a plan that is shorter in duration than the “applicable commitment period” found in § 1325(b). Current Ninth Circuit precedent plainly allows debtors to confirm a shorter plan (e.g., a three-year plan) under the facts of this case. See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 872 (9th Cir.2008). However, Trustee argued, and the bankruptcy judge agreed, that the Supreme Court’s intervening decision in Hamilton v. banning, — U.S. —, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), is irreconcilable with and thus implicitly overruled Kagenveama’s construction of “applicable commitment period,” which permits shorter Chapter 13 plans. The question before this court is whether the bankruptcy judge erred when it declined to follow this court’s otherwise controlling holding in Kagenveama because the bankruptcy judge deemed Kagenveama irreconcilable with banning. We disagree and hold that banning is not clearly irreconcilable with Kagenveama’s construction of “applicable commitment period.” Accordingly, we reverse and remand to the bankruptcy court for further proceedings consistent with this opinion. II.FACTUAL AND PROCEDURAL BACKGROUND Cesar and Ana Flores (“Debtors”) filed a petition for relief under Chapter 13 of the Bankruptcy Code. Debtors proposed a plan of reorganization with a duration of 36 months, calling for a monthly payment of $122. Trustee objected to the plan, arguing that the Bankruptcy Code requires a minimum plan duration of 60 months and that Ninth Circuit precedent to the contrary had been implicitly overruled by an intervening Supreme Court decision. The Bankruptcy Court sustained the objection and confirmed a 60-month plan calling for a monthly payment of $148. Debtors timely appealed to the Bankruptcy Appellate Panel (“BAP”). The bankruptcy court then certified the plan duration issue for direct appeal" }, { "docid": "3106144", "title": "", "text": "The Flores court held that “a bankruptcy court may confirm a Chapter 13 plan under ... § 1325(b)(1)(B) only if the plan’s duration is at least as lpng as the applicable commitment period provided by § 1325(b)(4).” 735 F.3d at 862 (overruling Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008)). The court observed: “A minimum duration for Chapter 13 plans is crucial to an important purpose of § 1329’s modification process: to ensure that unsecured creditors have a mechanism for seeking increased (that is, non-zero) payments if a debtor’s financial circumstances improve unexpectedly.” Id. at 860. If debtors were not bound to a minimum plan duration, “[cjreditors’ opportunity to seek increased payments that correspond to changed circumstances would be undermined.” Id. These cases, taken together, establish that Debtors’ plans must specify a length and cannot contain provisions which essentially amount to plan modifications shortening that length without complying with the procedural requirements of § 1329 and without obtaining a court order. There is nothing in the reasoning or rationale of Anderson, Fridley, Sunahara, or Flores which limits the holdings in those cases to debtors whose plans have been objected to and thus subject to the ACP under § 1325(b)(1). For each class of debtors— those bound to the statutory ACP and those who are not—the payments under the plan cannot be shortened and payments cannot be “completed,” absent modification, before the end of a definite period of time designated in the plan whether or not that period of time is fixed by the ACP or the debtor himself or herself. Counsel have not articulated any Congressional intent nor any policy reason why debtors who have no ACP can terminate their plans before the expiration of a plan term which they have chosen by inserting additional provisions to the Model Plan. Nowhere do Counsel discuss § 1329 or the requirements for plan modification. Moreover, the result the bankruptcy court reached is consistent with Congress’s intent in enacting BAPCPA which was to ensure that debtors repay creditors the maximum they can afford. Ransom, 131 S.Ct. at 728; see" }, { "docid": "17590927", "title": "", "text": "plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan. Again for the purpose of implementing the new dichotomy between above and below-median filers, BAPCPA added a new paragraph to section 1325(b) that defines “applicable commitment period” as follows: (4) For purposes of this subsection, the “applicable commitment period”— (A) subject to subparagraph (B), shall be— (i) 3 years; or (ii) not less than 5 years ... [if the debtor is above-median] ...; and (B) may be less than 3 or 5 years, whichever is applicable under subpar-agraph (A), but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period. 11 U.S.C. § 1325(b)(4). Thus, under BAPCPA, the applicable commitment period is 3 years for a below-median debtor and 5 years for an above-median debtor. Those periods may be shortened only to the extent that unsecured claims may be paid in full more quickly. In this Court’s view, since the new term “applicable commitment period” replaced “three-year period” which was a durational term, it seems readily apparent that the purpose of the amendment was to carry forward the concept of a durational minimum for all chapter 13 filers, leaving the 3 years in place for lower income debtors, but imposing a longer 5-year term for higher earners. All four courts of appeal that have considered the issue agree that section 1325(b) is a temporal requirement that sets a minimum plan duration, if a plan objection is filed, of five years for above-median debtors who have positive disposable income on line 59 of Form 22C. Baud, supra; In re Tennyson, 611 F.3d 873 (11th Cir.2010); In re Frederickson, 545 F.3d 652 (8th Cir.2008); In re Kagenveama, 541 F.3d 868 (9th Cir.2008). These courts rejected the viewpoint expressed by a number of bankruptcy courts that the “applicable commitment period” is only a multiplier. Under that interpretation, section 1325(b) would not require" }, { "docid": "14234716", "title": "", "text": "bankruptcy, because § 1325(b)(1)(B) concerns the plan’s minimum duration. Although both the maximum and the minimum will be five years for many debtors whose income, like that of the debtors in this case, is above-median, 11 U.S.C. §§ 1322(d)(1), 1325(b)(4)(A)(ii), a range of permissible plan durations remain possible if a proposed plan to repay all allowed unsecured creditors’ claims in full warrants a shorter applicable commitment period under § 1325(b)(4)(B). Furthermore, § 1325(b) is triggered only if the trustee or a creditor objects, whereas § 1322(d) applies in all cases, a distinction that suggests that Congress intended the two sections to serve different functions. . In Frederidcson, the Eighth Circuit expressly declined to decide whether such an exception to § 1325(b)’s temporal requirement exists when a debtor's projected disposable income is either zero or negative. 545 F.3d at 660 n. 6. . This conclusion is bolstered by the sections of the Code that allow creditors to monitor a debtor’s financial situation during the bankruptcy. For instance, Chapter 13 debtors, upon request, must provide post-petition reports of the amount and sources of their income, see 11 U.S.C. § 521(f)-(g), and the \"obvious purpose of this self-reporting obligation is to provide information needed by a [creditor] to decide whether to propose hostile § 1329 plan modifications,” Fridley, 380 B.R. at 544. The purpose of these monitoring provisions would be undermined if each plan did not have a minimum duration. PREGERSON, Circuit Judge, dissenting, with whom KOZINSKI, Chief Judge joins: The majority overrules our holding in Maney v. Kagenveama that the Chapter 13 “applicable commitment • period” does not mandate a five-year plan length for above median debtors with no projected disposable income. 541 F.3d 868, 876 (9th Cir.2008). The majority’s interpretation of 11 U.S.C. § 1325(b)(1)(B) promotes goals that are at odds with Congress’s purpose when it enacted Chapter 13 to “provide the debtor with a fresh start.” H.R. Rep. No. 95-595, at 117 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6079. The majority also reads language into Chapter 13 bankruptcy law that is not present in the plain text of § 1325(b)(1)(B)." }, { "docid": "14234697", "title": "", "text": "OPINION GRABER, Circuit Judge: In Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 875 (9th Cir.2008), we held that 11 U.S.C. § 1325(b)(1)(B) does not impose a minimum duration for a Chapter 13 bankruptcy plan if the debtor has no “projected disposable income,” as defined in the statute. Today, sitting en banc, we overrule that aspect of Kagenvea-ma and hold that the statute permits confirmation only if the length of the proposed plan is at least equal to the applicable commitment period under § 1325(b)(4). Accordingly, we affirm the judgment of the bankruptcy court. I. Background Debtors Cesar and Ana Flores filed a petition for relief under Chapter 13 of the Bankruptcy Code. They have unsecured debts. They proposed a plan of reorganization under which they would pay $122 per month (1 %) of allowed, unsecured, nonpriority claims for three years. Chapter 13 Trustee Rod Danielson objected to the plan, arguing, as now relevant, that § 1325(b) requires a minimum duration of five years for persons in Debtors’ circumstances. The bankruptcy court sustained the Trustee’s objection, holding that Debtors were not entitled to a shorter plan duration because the Supreme Court’s decision in Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), is clearly irreconcilable with Kagenveama. The bankruptcy court confirmed a plan of five years’ duration, which provided for monthly payments of $148 to unsecured creditors. Debtors timely appealed to the Bankruptcy Appellate Panel. The bankruptcy court then certified the plan-duration issue for direct appeal to this court pursuant to 28 U.S.C. § 158(d)(2). A divided panel of this court reversed, reasoning that Lanning is not clearly irreconcilable with Kagenveama and that, under Kagenveama, § 1325(b) allows a shorter plan duration for Debtors. Danielson v. Flores (In re Flores), 692 F.3d 1021, 1038 (9th Cir.2012). We then voted to rehear the case en banc. Danielson v. Flores (In re Flores), 704 F.3d 1067 (9th Cir.2012). II. Analysis Chapter 13 is a mechanism available to “individuals] with regular income” whose debts are within statutory limits. 11 U.S.C. §§ 101(30), 109(e). Unlike Chapter 7, which requires" }, { "docid": "14234715", "title": "", "text": "holding regarding the meaning of “applicable commitment period” and affirm the bankruptcy court’s ruling. The mandate shall issue forthwith. AFFIRMED. . The Trustee has never questioned Debtors' good faith in proposing the plan. See 11 U.S.C. § 1325(a)(3) (setting forth requirement of the debtors’ good faith). . See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (holding that a three judge panel is not bound by prior circuit precedent if an intervening decision of a higher authority \"undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). . Debtors do not dispute the increase from $122 to $148 per month. . We review de novo issues of statutory construction, including a bankruptcy court's interpretation of the Bankruptcy Code. Samson v. W. Capital Partners, LLC (In re Blixseth), 684 F.3d 865, 869 (9th Cir.2012) (per cu-riam). . Our interpretation of § 1325(b)(1)(B) does not render that provision redundant with § 1322(d), which sets forth the maximum periods of time for a Chapter 13 bankruptcy, because § 1325(b)(1)(B) concerns the plan’s minimum duration. Although both the maximum and the minimum will be five years for many debtors whose income, like that of the debtors in this case, is above-median, 11 U.S.C. §§ 1322(d)(1), 1325(b)(4)(A)(ii), a range of permissible plan durations remain possible if a proposed plan to repay all allowed unsecured creditors’ claims in full warrants a shorter applicable commitment period under § 1325(b)(4)(B). Furthermore, § 1325(b) is triggered only if the trustee or a creditor objects, whereas § 1322(d) applies in all cases, a distinction that suggests that Congress intended the two sections to serve different functions. . In Frederidcson, the Eighth Circuit expressly declined to decide whether such an exception to § 1325(b)’s temporal requirement exists when a debtor's projected disposable income is either zero or negative. 545 F.3d at 660 n. 6. . This conclusion is bolstered by the sections of the Code that allow creditors to monitor a debtor’s financial situation during the bankruptcy. For instance, Chapter 13 debtors, upon request, must provide post-petition reports" }, { "docid": "20453221", "title": "", "text": "is whether the bankruptcy judge erred when it declined to follow this court’s otherwise controlling holding in Kagenveama because the bankruptcy judge deemed Kagenveama irreconcilable with banning. We disagree and hold that banning is not clearly irreconcilable with Kagenveama’s construction of “applicable commitment period.” Accordingly, we reverse and remand to the bankruptcy court for further proceedings consistent with this opinion. II.FACTUAL AND PROCEDURAL BACKGROUND Cesar and Ana Flores (“Debtors”) filed a petition for relief under Chapter 13 of the Bankruptcy Code. Debtors proposed a plan of reorganization with a duration of 36 months, calling for a monthly payment of $122. Trustee objected to the plan, arguing that the Bankruptcy Code requires a minimum plan duration of 60 months and that Ninth Circuit precedent to the contrary had been implicitly overruled by an intervening Supreme Court decision. The Bankruptcy Court sustained the objection and confirmed a 60-month plan calling for a monthly payment of $148. Debtors timely appealed to the Bankruptcy Appellate Panel (“BAP”). The bankruptcy court then certified the plan duration issue for direct appeal to this court, pursuant to 28 U.S.C. § 158(d)(2). The relevant facts are not disputed: Debtors’ “current monthly income,” as that term is defined in the Bankruptcy Code, is above the median income for their locality. Debtors’ monthly “disposable income,” as that term is defined in the Bankruptcy Code, is negative. Debtors have unsecured debts. Debtors’ proposed plan would pay 1% of allowed, unsecured, non-priority claims. III.STANDARD OF REVIEW Questions of “statutory interpretation and Ninth Circuit precedent” are questions of law, which this court reviews de novo. Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir.2011); see also Baker v. Delta Air Lines, Inc., 6 F.3d 632, 637 (9th Cir.1993) (“Whether stare decisis applies ... [is an] issue[ ] of law, renewable de novo.”). IV.DISCUSSION We begin with a review of the statutory framework at issue in this case, as well as a discussion of this court’s prior ruling in Kagenveama and the Supreme Court’s intervening decision in banning. A. Statutory Framework The Bankruptcy Code imposes a number of conditions on confirmability" }, { "docid": "1299834", "title": "", "text": "1325(b)(1)(B). The Code defines “applicable commitment period” as: For purposes of this subsection, the ‘applicable commitment period’— (A) subject to subparagraph (B), shall be— (i) 3 years; or (ii) not less than 5 years, if the current monthly income of the debtor and the debtor’s spouse combined, when multiplied by 12, is not less than— Hi H* ífc Hi (II) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals; (B) may be less than 3 or 5 years, whichever is applicable under subpar-agraph (A), but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period. § 1325(b)(4). Due to their above-median income, the applicable commitment period for Debtors’ plan is five years. Id. Because of this, Trustee objects to confirmation of Debtors’ proposed three-year plan. Trustee’s concerns seem easy enough to understand. However, the Court’s analysis of whether Debtors’ plan should be confirmed is complicated by the holdings in the case law construing the Code provisions discussed above. Of particular import here is the Ninth Circuit Court of Appeals’ decision in Ma-ney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008). The facts of Kagenveama nearly mirror those of this case. See 541 F.3d at 871. The Kagen-veama chapter 13 debtor was above-median income. Id. Her Schedules I and J indicated a monthly net income of $1,523.89, while her Form 22C disposable income was negative -$4.04 per month. Id. Like here, the difference between the Ka-genveama debtor’s Schedule I and J monthly net income and her Form 22C disposable income resulted from Form 22C standardized expenses that were greater than her actual expenses. See id. Despite a negative disposable income, the Kagenveama debtor proposed a plan by which she would pay $1,000 per month to the chapter 13 trustee for three years. Id. The Kagenveama chapter 13 trustee objected to plan confirmation because the plan did not extend for the five-year “applicable commitment period” under §" }, { "docid": "3106097", "title": "", "text": "OPINION JURY, Bankruptcy Judge: When Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), a primary purpose was to help ensure that debtors who can pay creditors do pay them the maximum they can afford. Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 131 S.Ct. 716, 721, 178 L.Ed.2d 603 (2011); see also Whaley v. Tennyson (In re Tennyson), 611 F.3d 873, 879 (11th Cir. 2010) (“‘The heart of [BAPCPA’s] consumer bankruptcy reforms ... is intended to ensure that debtors repay creditors the maximum they can afford.’ ”). The Ninth Circuit in Danielson v. Flores (In re Flores), 735 F.3d 855 (9th Cir. 2013), embraced this ideal by ruling that if the provisions of § 1325(b)(1)(B) are triggered by an objection, debtors must commit to a fixed plan term (either 36 or 60 months) because “[a] minimum duration for Chapter 13 plans is crucial to an important purpose of § 1329’s modification process: to ensure that unsecured creditors have a mechanism for seeking increased (that is, nonzero) payments if a debtor’s financial circumstances improve unexpectedly.” Id. at 860 (citing Fridley v. Forsyth (In re Fridley), 380 B.R. 538, 543 (9th Cir. BAP 2007)). Notwithstanding this background and purpose, debtors in the Northern District of California, San Jose Division sought to modify the district’s mandatory Model Plan, which required a fixed plan term, so that the plan would be for an indeterminate duration. Such plan therefore could be completed without further modification and debtor discharged as soon as all priority and secured debt was repaid, insuring that the unsecured creditors would never receive any payment on their claims. Not only did the debtors propose such plans, but their chapter 13 trustee devised a mechanism by which she could avoid filing an objection to the proposed plan—an act which would trigger the mandatory imposition of the applicable commitment period under Flores —by providing debtors’ attorneys with a “draft objection” which allowed them to make required amendments to the plan outside the court proceeding. The brash purpose of the “draft objection” was to create a work-around of the" }, { "docid": "3106143", "title": "", "text": "plan. In addition, Fridley underscores the necessity of seeking plan modification to shorten the length of a plan before the “completion” of payments. The BAP emphasized: • In exchange for the benefits of filing chapter 13 (over chapter 7), the debt- or must pay a price—the debtor’s increases in income are exposed to the risk of being captured by the trustee or an unsecured creditor. The possibility of capturing increases in income necessitates that the chapter 13 trastee or unsecured creditors are apprised of the term of the plan so that they can seek modification if the Debtor’s income increases. That term cannot be undefined simply because Debtors’ plans offered to pay unsecured creditors nothing. See In re Schiffman, 338 B.R. at 434 (“[Ejarly payoff proposals ... present opportunities for abuse by the less than forthcoming debtor.”). The reasons for holding a chapter 13 debtor to a plan for a definite period of time were addressed by the Ninth Circuit in Flores. Again, the analysis in Flores was intertwined with plan modification under § 1329. The Flores court held that “a bankruptcy court may confirm a Chapter 13 plan under ... § 1325(b)(1)(B) only if the plan’s duration is at least as lpng as the applicable commitment period provided by § 1325(b)(4).” 735 F.3d at 862 (overruling Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008)). The court observed: “A minimum duration for Chapter 13 plans is crucial to an important purpose of § 1329’s modification process: to ensure that unsecured creditors have a mechanism for seeking increased (that is, non-zero) payments if a debtor’s financial circumstances improve unexpectedly.” Id. at 860. If debtors were not bound to a minimum plan duration, “[cjreditors’ opportunity to seek increased payments that correspond to changed circumstances would be undermined.” Id. These cases, taken together, establish that Debtors’ plans must specify a length and cannot contain provisions which essentially amount to plan modifications shortening that length without complying with the procedural requirements of § 1329 and without obtaining a court order. There is nothing in the reasoning or rationale of Anderson," }, { "docid": "20453269", "title": "", "text": "bankruptcy court, may consider in assessing the good faith requirement. See Meyer v. Lepe (In re Lepe), 470 B.R. 851, 857 (B.A.P. 9th Cir.2012) (internal quotation marks omitted). Indeed, Lepe made clear that bankruptcy courts must reject any perse applications of the good faith requirement based on any one factor, and must instead engage in a detailed, case-by-case determination of good faith based on the totality of the circumstances, including plan duration. See id. at 856-58; see also id. at 862 (quoting, e.g., Drummond v. Welsh (In re Welsh), 465 B.R. 843, 854 (B.A.P. 9th Cir.2012)) (\" '[A] debtor's lack of good faith cannot be found based solely on the fact that the debtor is doing what the Code allows.’ ”) (emphasis added). Thus, even if a short payment plan is npt sufficient to constitute the sole basis for a bad faith finding, Lepe does not foreclose a bankruptcy court from considering it as one among many factors. GRABER, Circuit Judge, dissenting: I respectfully dissent. In my view, we are not compelled to follow Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008), because it is “clearly irreconcilable” with Hamilton v. Lanning, - U.S. -, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (stating principle that a three-judge panel is not bound by a prior circuit precedent in this circumstance). Kagenveama created a rule under which our circuit set no minimum duration on plans confirmable by certain debtors, such as the ones in this case. See 541 F.3d at 877 (holding that, when a debtor’s projected disposable income was negative, the applicable commitment period “did not apply” and offering no substitute durational requirement). That aspect of Kagenveama is clearly irreconcilable with Lanning, which interprets 11 U.S.C. § 1325(b) (the “disposable income test”) as a vehicle for achieving the congressional intent of making debtors pay as much as they can, but no more, over a fixed period, while allowing discretion to adjust the payout up or down as required by the debtor’s evolving financial situation. In Lanning, the" }, { "docid": "20453260", "title": "", "text": "to which interpretation of the ACP would best fulfill BAPCPA’s purpose. We cannot say that Kagenveama’s interpretation of the ACP and its effect under § 1325(b)(1) will lead to senseless results in contravention of Congress’s purpose in enacting the BAPCPA. In this regard, Kagenveama is not inconsistent with Lanning. V. CONCLUSION As one court has noted, “many jurists and commentators have written ... ably on this issue” and “cogent arguments, both of statutory construction and of bankruptcy policy, have certainly been made” on all sides. In re Moose, 419 B.R. 632, 635 (Bankr.E.D.Va.2009). Were we writing on a clean slate, the contrary conclusion reached by the Sixth and Eleventh Circuits on this question would deserve consideration. The Trustee raises legitimate policy considerations as to why a mandated plan length might be desirable even when debtors have no projected disposable income. The dissent highlights some of these legitimate policy concerns. However, we do not write on a clean slate. Instead, our analysis is constrained by our own prior authority, which we are bound to follow unless it is clearly irreconcilable with Lanning. We are not convinced that Lanning has “undercut the theory or reasoning underlying [Kagenveama ] in such a way that the cases are clearly irreconcilable.” Gammie, 335 F.3d at 900 (emphasis added). Thus, only the Supreme Court or an en banc panel of this court may revisit Kagenveama’s holding regarding the applicable commitment period. Accordingly, we conclude that the bankruptcy court erred in disregarding Kagenveama. REVERSED AND REMANDED. . As the parties confirmed at oral argument, there is no dispute on appeal over the increase from a $122 monthly payment to unsecured creditors, proposed by Debtors, and a $148 monthly payment to unsecured creditors, confirmed by the bankruptcy court. Rather, the only dispute is over the duration of these monthly payments. There is no dispute that the plan was proposed in good faith. . Because Trustee filed the motion to certify for direct appeal, he was listed as Appellant in this appeal, even though he prevailed at the bankruptcy court. . An above-median debtor is simply one whose annualized" }, { "docid": "3106127", "title": "", "text": "an independent determination of undue hardship before a plan is confirmed, even if the creditor fails to object or appear in the adversary proceeding”). As we have noted above, this suggests that the bankruptcy court has an independent obligation, even in the absence of any creditor objection, to ascertain that all plan confirmation requirements are met. The bankruptcy court could not effectively carry out this responsibility without the chapter 13 trustee’s assistance. Unlike the court, the trustee can ask questions of the debtor informally and at the meeting of creditors under § 341. The trustee, and not the court, is in a position to ask the questions that test the confirmability of the debtor’s plan. The chapter 13 trustee in these cases made a deliberate decision not to raise any objections under § 1325(b). If the Trustee ■ had done so, these debtors would have had to propose plans with three- or five-year minimum durations. The Ninth Circuit’s en banc decision in Flores, holds that a debtor’s plan must provide for payments for the entire “appli cable commitment period” even if the debt- or has no “disposable income.” The Trustee in these cases accurately-described Flores as “impactful,” because it means that, if the trustee or an unsecured creditor objects, debtors must remain in chapter 13 longer. If the debtor truly has-no “disposable income,” the extended duration would not require the debtor to pay anything to unsecured creditors. But, as we point out above, the test has a powerful indirect effect; as long as the debtor’s plan term continues, the plan is subject to modification under § 1329. This means that, if the debtor’s net income rises, the trustee or a creditor could move for a modification of the plan that would require the debtor to pay more to unsecured creditors. Therefore, debtors have an interest in keeping the duration of their plans as short as possible, while unsecured creditors want maximum plan durations. Faced with this conflict of interest, the Trustee chose to take the side of the debtors. She told the chapter 13 debtors’ bar that she would prepare" }, { "docid": "14234698", "title": "", "text": "Trustee’s objection, holding that Debtors were not entitled to a shorter plan duration because the Supreme Court’s decision in Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), is clearly irreconcilable with Kagenveama. The bankruptcy court confirmed a plan of five years’ duration, which provided for monthly payments of $148 to unsecured creditors. Debtors timely appealed to the Bankruptcy Appellate Panel. The bankruptcy court then certified the plan-duration issue for direct appeal to this court pursuant to 28 U.S.C. § 158(d)(2). A divided panel of this court reversed, reasoning that Lanning is not clearly irreconcilable with Kagenveama and that, under Kagenveama, § 1325(b) allows a shorter plan duration for Debtors. Danielson v. Flores (In re Flores), 692 F.3d 1021, 1038 (9th Cir.2012). We then voted to rehear the case en banc. Danielson v. Flores (In re Flores), 704 F.3d 1067 (9th Cir.2012). II. Analysis Chapter 13 is a mechanism available to “individuals] with regular income” whose debts are within statutory limits. 11 U.S.C. §§ 101(30), 109(e). Unlike Chapter 7, which requires debtors to liquidate nonexempt assets to pay creditors. Chapter 13 permits debtors to keep those assets if they “agree to a court-approved plan under which they pay creditors out of their future income.” Lanning, 130 S.Ct. at 2468-69 (citing 11 U.S.C. §§ 1306(b), 1321, 1322(a)(1), 1328(a)). A bankruptcy trustee oversees the. filing and execution of the plan. 11 U.S.C. § 1322(a)(1); see. also 28 U.S.C. § 586(a)(3). . Section 1325 of the Bankruptcy Code sets forth the circumstances in which the bankruptcy court “shall” confirm a debt- or’s proposed repayment plan and those in which it “may not” do so. Under subsection 1325(b)(1), if the trustee or an unsecured creditor objects to a debtor’s proposed plan, the court may not approve the plan unless at least one of two conditions is met. As relevant here, the second of those conditions is that “the .plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will" }, { "docid": "1299857", "title": "", "text": "result. Conclusion If it were writing on a clean slate, this Court might well be persuaded to adopt Trustee’s interpretation of chapter 13. Debtors with no projected disposable income, but positive monthly net income, should, perhaps, be expected to make a long-term commitment to paying their creditors, for no other reason than to allow unsecured creditors or the trustee to move to modify their plans if their circumstances improve. See § 1329(a). But the Ninth Circuit has already expressly addressed whether debtors with no projected disposable income are required to confirm five-year plans in Kagenveama. And, while Kagenveama was overruled in part by Lanning, neither Lanning nor Ransom alter Kagenveama’s applicable commitment period holding. Indeed, fairly analyzed, Kagenveama is consonant with the particular purpose of § 1325(b)(1), and the general goals of BAPCPA as a whole. In summary, because this Court remains bound to follow Kagenveama to the extent not impacted by the Supreme Court’s decisions, Debtors in this case need not propose plan payments to unsecured creditors for an applicable commitment period of five years. Trustee’s objection to confirmation of Debt- or’s proposed plan on this basis is denied. Counsel for Debtors and Trustee are directed to cooperate in the prompt submission of an approved form of confirmation order for entry by the Court. . Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and all rule references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. . \"Form 22C\" refers to the “Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income.” . Only material facts are recited here. . Under amendments made by Congress to the Bankruptcy Code in 2005, debtors with above-median income for their state must use certain standardized \"expenses,” to calculate Form 22C disposable income. See §§ 707(b)(2); 1325(b)(2), (b)(3). Schedule J, on the other hand, is completed using debtors' actual expenses. . Unlike here, though, the Kagenveama debt- or's plan \"yielded an estimated dividend of s'?,444.38 to her unsecured creditors.” 541 F.3d at 871. . When the Kagenveama chapter" }, { "docid": "14234723", "title": "", "text": "applicable commitment period is three years for debtors with below median income and five years for debtors with above median income. 11 U.S.C. § 1325(b)(4)(A). Because the Floreses are above median debtors, their corresponding applicable commitment period is five years. The Floreses, however, have no projected disposable income. Thus, the Floreses will contribute no projected disposable income to unsecured creditors over their five year applicable commitment period. Courts have approachéd the applicable commitment period in several different ways. Some courts, such as the majority here, endorse what is called the temporal approach, where the applicable commitment period is treated as a time requirement for Chapter 13 plan length. This approach has been endorsed by the Sixth, Eighth, and Eleventh Circuits, and district courts in the Fifth, Seventh, and Tenth Circuits. See Baud v. Carroll, 634 F.3d 327 (6th Cir.2011); In re Tennyson, 611 F.3d 873 (11th Cir.2010); In re Frederickson, 545 F.3d 652 (8th Cir.2008); In re Martin, 464 B.R. 798 (C.D.Ill.2012); In re Wing, 435 B.R. 705 (D.Co.2010); In re Meadows, 410 B.R. 242 (N.D.Tx.2009). Other courts have endorsed the monetary approach, where debtors contribute a set amount of money in a time period that may be shorter than the applicable commitment period. This approach has been endorsed by district courts in the Second and Third Circuits. See In re Green, 378 B.R. 30 (N.D.N.Y.2007); In re Vidal, 418 B.R. 135 (M.D.Pa.2009). I continue to endorse the hybrid approach we endorsed in Kagenveama and in the original Flores opinion. Under that approach, “the ‘applicable commitment period’ sets the minimum temporal duration of a plan, but it is inapplicable to a plan submitted ... by a debtor with no ‘projected disposable income.’ ” Danielson v. Flores, 692 F.3d 1021, 1027 (9th Cir.2012). The Chapter 13 “applicable commitment period” does not explicitly apply to debtors who qualify for Chapter 13 bankruptcy but have no projected disposable income. The majority concludes, however, that the “applicable commitment period” should determine the requisite length of a Chapter 13 plan for all debtors, whether or not they have projected disposable income. The majority disregards the" }, { "docid": "20453275", "title": "", "text": "all allowed unsecured claims over a shorter period. Section 318(2), (3), and (4) make conforming amendments to sections 1325(b) and 1329(c) of the Bankruptcy Code. H.R.Rep. No. 109-31(1), § 318, at 79 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 146 (emphasis added). The quoted section is confusingly worded, but the title suggests that above-median debtors are to be held to a five-year minimum plan duration without regard to their expenses or disposable income, unless they pay unsecured claims in full over a shorter period. The majority admits that, as between the two competing statutory interpretations at the heart of this case, neither is necessarily more correct than the other. Maj. op. at 1033, 1038. The majority also concedes that, were it “writing on a clean slate, the contrary conclusion reached by the Sixth and Eleventh Circuits on this question would deserve consideration.” Id. at 1038. Because our circuit’s rule is clearly irreconcilable with later Supreme Court precedent, we are writing on a clean slate. In so doing, we should consider most strongly the intent of Congress (to require debtors to pay creditors what they can readily afford) and the need for national uniformity in the application of the federal bankruptcy laws. Those two factors compel the conclusion that Kagenveama no longer is good law. I would therefore adopt the holdings of our sister circuits and affirm the bankruptcy court’s decision. . Indeed, Trustee represents that, in the wake of Kagenveama, some debtors have proposed plans as short as six months. .The majority observes that creditors will be able to capture the benefit of increases to a debtor’s income because of Lanning’s flexible and forward-looking approach to calculating projected disposable income. Maj. op. at 1035-36. But Lanning applies only to known, or \"virtually certain,” increases in income. 130 S.Ct. at 2475. Lanning does not allow courts discretion to consider foreseeable yet uncertain increases to a debtor’s income. Consider, for example, a law student who has secured a lucrative associate position, contingent on passing a bar examination. For the purposes of Chapter 13 eligibility, assume further that the law student is also working" }, { "docid": "20453261", "title": "", "text": "it is clearly irreconcilable with Lanning. We are not convinced that Lanning has “undercut the theory or reasoning underlying [Kagenveama ] in such a way that the cases are clearly irreconcilable.” Gammie, 335 F.3d at 900 (emphasis added). Thus, only the Supreme Court or an en banc panel of this court may revisit Kagenveama’s holding regarding the applicable commitment period. Accordingly, we conclude that the bankruptcy court erred in disregarding Kagenveama. REVERSED AND REMANDED. . As the parties confirmed at oral argument, there is no dispute on appeal over the increase from a $122 monthly payment to unsecured creditors, proposed by Debtors, and a $148 monthly payment to unsecured creditors, confirmed by the bankruptcy court. Rather, the only dispute is over the duration of these monthly payments. There is no dispute that the plan was proposed in good faith. . Because Trustee filed the motion to certify for direct appeal, he was listed as Appellant in this appeal, even though he prevailed at the bankruptcy court. . An above-median debtor is simply one whose annualized \"current monthly income\" is greater than the applicable median family income; all other debtors are below-median. See 11 U.S.C. § 1325(b)(3), (b)(4) (setting forth this dichotomy without using the quoted terminology). \"Current monthly income\" is defined to mean, in essence, the average of the debtor’s monthly income in the six months before the filing of his or her petition. Id. § 101(10A). . This approach, and all others discussed in this opinion, assumes the satisfaction of § 1325(b)'s two predicate conditions: (1) an objection by the trustee or by an unsecured creditor and (2) payments under the plan provide less than full recovery by unsecured creditors. As discussed above, those conditions are satisfied here. . Because this approach somewhat overlaps in effect and reasoning with both the temporal approach and the monetary/multiplier approach, different courts have placed it in different categories. See, e.g., Baud, 634 F.3d at 337 (categorizing as variant on temporal approach); Tennyson, 611 F.3d at 876 (categorizing as multiplier approach). 6. Section 1322(d) provides in relevant part that \"[i]f the current monthly" } ]

[ { "docid": "22798827", "title": "", "text": "pregnancy. In subsequent cases, we have invalidated other types of restrictions, different in form but similar in effect, on the woman’s freedom of choice. Thus, in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 70-71, n. 11 (1976), we held that Missouri’s requirement of spousal consent was unconstitutional because it “granted [the husband] the right to prevent unilaterally, and for whatever reason, the effectuation of his wife’s and her physician’s decision to terminate her pregnancy.” Missouri had interposed an “absolute obstacle to a woman’s decision that Roe held to be constitutionally protected from such interference.” (Emphasis added.) Although a state-created obstacle need not be absolute to be impermissible, see Doe v. Bolton, 410 U. S. 179 (1973); Carey v. Population Services International, 431 U. S. 678 (1977), we have held that a requirement for a lawful abortion “is not unconstitutional unless it unduly burdens the right to seek an abortion.\" Bellotti v. Baird, 428 U. S. 132, 147 (1976). We recognized in Bellotti that “not all distinction between abortion and other procedures is forbidden” and that “[t]he constitutionality of such distinction will depend upon its degree and the justification for it.” Id., at 149-150. We therefore declined to rule on the constitutionality of a Massachusetts statute regulating a minor’s access to an abortion until the state courts had had an opportunity to determine whether the statute authorized a parental veto over the minor’s decision or the less burdensome requirement of parental consultation. These cases recognize a constitutionally protected interest “in making certain kinds of important decisions” free .from governmental compulsion. Whalen v. Roe, 429 U. S. 589, 599-600, and nn. 24 and 26 (1977). As Whalen makes clear, the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it. Roe did not declare an unqualified “constitutional right to an abortion,” as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the" } ]

[ { "docid": "1683284", "title": "", "text": "physician possessing “qualifications acquired by special training” could perform surgery at an FSOF. According to the testimony of the State’s witnesses, Rule 35(1) only requires that a physician “be qualified to do whatever he or she undertakes; ” the rule does not require that only a specialist perform abortions. 508 F.Supp. at 1377. Based on this interpretation of Rule 35(1) we agree with the trial court. Michigan may constitutionally insist that only properly licensed physicians be permitted to perform abortions at FSOFs. Even in the first trimester of pregnancy the State’s interest in maternal health is sufficient to justify a requirement that an abortion may be performed only “by medically competent personnel.” Connecticut v. Menillo, 423 U.S. 9, 11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975). As the Supreme Court made explicit in Roe v. Wade, a “State may define the term ‘physician’ ... to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.” 410 U.S. at 165, 93 S.Ct. at 732. We therefore uphold Rule 35(1) as interpreted by the trial court. (d) Rules 26(2), 35(3), 57(6), 66, 67, 68: Staffing, structural and equipment regulations The plaintiffs object to a number of detailed, specific criteria governing the staffing, physical layout and equipment required for FSOF licensure. Although plaintiffs contend compliance with these regulations would be costly, the trial court found the regulations did “not unduly burden a woman’s right to seek an abortion” and then upheld the regulations as reasonably related to the State’s legitimate purpose of protecting the health and safety of its citizens. 508 F.Supp. at 1384. Again, we believe that in utilizing the “unduly burdensome” standard to evaluate these regulations the trial court employed an analysis no longer appropriate under Akron. When regulations affecting first trimester abortions are involved, “[cjertain regulations that have no significant impact on the woman’s exercise of her right may be permissible where justified by important state health objectives.” Akron, 103 S.Ct. at 2492-93. We must then consider whether these regulations have any significant impact" }, { "docid": "23441946", "title": "", "text": "S.Ct. 2376, 53 L.Ed.2d 484 (1977) (state funding for childbirth but not abortion permissible). See Menillo v. Connecticut, 423 U.S. 9, 11, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam) (state criminal statute proscribing unlicensed physician from performing abortions does not impinge on abortion decision); Baird v. Department of Public Health, 599 F.2d 1098 at 1102 (1st Cir. 1979). If the regulation does impinge upon a woman’s abortion decision or the means of effectuating it, the regulation still “is not unconstitutional unless it unduly burdens the right to seek an abortion.” Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (Belotti I) (emphasis supplied). See also Maher v. Roe, supra, 432 U.S. at 473-74, 97 S.Ct. 2376. If the regulation unduly burdens the abortion decision, it must be justified by a compelling state interest. Carey v. Population Services International, 431 U.S. 678, 686, 688, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705. If, on the other hand, the regulation impinges upon the abortion decision without unduly burdening it, it will be sustained if it reasonably furthers a proper state purpose. See Planned Parenthood v. Dan forth, supra note 2, at 65-67, 96 S.Ct. 2831 (State can require prior written consent of abor tion patient), 80-81, 96 S.Ct. 2831 (physician reporting and recordkeeping requirement related to patients’ health upheld). Thus, “[a]s Whalen [v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)] makes clear, the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it.” Maher v. Roe, supra, 432 U.S. at 473, 97 S.Ct. at 2382. With these principles in mind, the Court will separately consider the constitutionality of each of the challenged Maine statutes. IV The Constitutionality of the Challenged Maine Statutes Defendants concede that the challenged statutory provisions impinge upon a woman’s abortion decision or her ability to effectuate that decision. Defendants also agree that the statutes apply to first trimester abortions, as well as" }, { "docid": "1683272", "title": "", "text": "[and] in maintaining medical standards.” ... (T)his health interest does not become compelling until “approximately the end of the first trimester” of pregnancy. Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision “free of interference by the State.” Akron, 103 S.Ct. at 2491-92 (citations omitted) (footnote omitted). Subsequent to its decision in Roe v. Wade, the Supreme Court has several times found it necessary to evaluate state regulations that in some way affect a woman’s ability to exercise her fundamental right to terminate her pregnancy. See City of Akron v. Akron Center for Reproductive Health, supra; Planned Parenthood v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In Akron, one of its most recent abortion decisions, the Supreme Court rearticulated the guidelines for permissible state regulation of abortion. These guidelines control the analysis of the Michigan legislation being challenged here. Akron teaches that during the first trimester of pregnancy the State may impose only regulations that have “no significant impact on the woman’s exercise of her right [to abort],” and even these “minor regulations ... may not interfere with physician-patient consultation or with the woman’s choice between abortion and childbirth.” Akron, 103 S.Ct. at 2492-93 (emphasis added). Furthermore, these insignificant regulations must further “important state health objectives,” and the burden of demonstrating this rests on the State. Id. 103 S.Ct. at 2493. “From approximately the end of the first trimester of pregnancy, the State ‘may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.’ ” Akron, 103 S.Ct. at 2493 (quoting Roe v. Wade," }, { "docid": "1683271", "title": "", "text": "S.Ct. at 727. Because the right to choose abortion is a fundamental right, any state regulation restricting a woman’s right to choose abortion “must be supported by a compelling state interest.” Akron, 103 S.Ct. at 2491; Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 727. The Supreme Court has recognized two compelling state interests that will justify State regulation of abortion: First, a State has an “important and legitimate interest in protecting the potentiality of human life.” Although this interest exists “throughout the course of the woman’s pregnancy,” it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb.” At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother.” Second, because a State has a legitimate concern with the health of women who undergo abortions, “a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.” ... (T)his health interest does not become compelling until “approximately the end of the first trimester” of pregnancy. Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision “free of interference by the State.” Akron, 103 S.Ct. at 2491-92 (citations omitted) (footnote omitted). Subsequent to its decision in Roe v. Wade, the Supreme Court has several times found it necessary to evaluate state regulations that in some way affect a woman’s ability to exercise her fundamental right to terminate her pregnancy. See City of Akron v. Akron Center for Reproductive Health, supra; Planned Parenthood v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170," }, { "docid": "18630689", "title": "", "text": "disposal of nonviable fetuses. Section 14-02.1-11 imposes a criminal penalty for violation of any of the provisions of ch. 14-02.1. Plaintiff Leigh is a board certified obstetrician-gynecologist in Grand Forks, North Dakota, who performs abortions. Plaintiff Bovard is a counselor who desires to give information and advice concerning abortion to women in North Dakota who seek such a service. Plaintiff Leigh may assert the rights of those women who are seeking or will seek to obtain an abortion, for “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision . . . .” Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 2876, 49 L.Ed.2d 826 (1976). I. PRINCIPLES OF LAW APPLICABLE TO ABORTION. A. Substantive Due Process The decision to obtain an abortion free from governmental interference is a fundamental right founded in the right of privacy implicit in the Constitution. Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The state may limit the exercise of that fundamental right only when a compelling state interest is furthered thereby. The state has important interests in maternal health and in the preservation of potential human life, but neither of these interests are “compelling” in the first trimester of pregnancy, although they are legitimate. Id. at 162-63, 93 S.Ct. at 731. Any statute or regulation that unduly burdens the abortion decision in the first trimester of pregnancy is therefore invalid. Maher v. Roe, 432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977); Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). A regulation that does not unduly burden the abortion decision is constitutional if it is rationally related to a legitimate state purpose. Harris v. McRae, - U.S. -, -, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980); Maher v. Roe, supra. B. Equal Protection A statutory classification based on a “suspect” criterion, such as race, may be upheld only if it furthers a compelling state interest. Harris v. McRae, supra. Statutory" }, { "docid": "1683270", "title": "", "text": "a woman’s right to terminate her pregnancy. We turn now to plaintiffs’ contentions that the FSOF licensing scheme violates their patients’ due process right to terminate their pregnancies free of State interference. Because of the continued evolution in the law regarding abortions, we review the legal nature of this constitutional right before turning to the facts in this case. The Supreme Court recognized in Roe v. Wade that “the right of privacy ... founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973). However, a woman’s constitutionally protected right to choose to terminate her pregnancy by abortion is not an absolute right; rather, it “must be considered against important state interests” in regulating abortion. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983); Roe v. Wade, 410 U.S. at 154, 93 S.Ct. at 727. Because the right to choose abortion is a fundamental right, any state regulation restricting a woman’s right to choose abortion “must be supported by a compelling state interest.” Akron, 103 S.Ct. at 2491; Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 727. The Supreme Court has recognized two compelling state interests that will justify State regulation of abortion: First, a State has an “important and legitimate interest in protecting the potentiality of human life.” Although this interest exists “throughout the course of the woman’s pregnancy,” it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb.” At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother.” Second, because a State has a legitimate concern with the health of women who undergo abortions, “a State may properly assert important interests in safeguarding health" }, { "docid": "3324227", "title": "", "text": "1148-52 (7th Cir. 1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). . See Maher v. Roe, 432 U.S. 464, 478-80, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (upholding Connecticut welfare regulations that fund childbirth but do not pay for an abortion unless a physician certifies the abortion is “medically necessary”); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (Connecticut criminal statute proscribing unlicensed physician from performing abortions does not impinge on abortion decision). . Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). . See Carey v. Population Services International, 431 U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705. Compare Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (striking down statute requiring that abortions be performed only in accredited hospitals and that three-doctor committee approve all abortions) with Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (striking down state law limiting salene amneocentesis method of abortion, requiring spousal consent, and requiring parental consent for minors). . See Planned Parenthood v. Danforth, supra (upholding regulation imposing recordkeeping requirements as related to state purpose of furthering public health). . Maher v. Roe, supra, 432 U.S. at 473, 97 S.Ct. at 2382. . Dr. Haber, a practicing clinical psychologist, was designated an expert by the Court, based upon her education (Ph.D.) and clinical experience. . Dr. Good (M.D.), is one of four doctors in the United States qualified to practice in both Obstetrics/Gynecology and Psychiatry. . Dr. Seiden is a practicing Psychiatrist affiliated with Cook County General Hospital in Chicago, Illinois. . Ms. Radziwill is affiliated with the University of Miami Medical School and its Department of Obstetrics/Gynecology/Family Services. In her capacity as a counselor, Ms. Radziwill con-suits with approximately one thousand patients per year who are considering terminating their pregnancies. . The testimony of anonymous witness # 1 established such an instance. . The testimony of anonymous witness # 2 established such an" }, { "docid": "5067130", "title": "", "text": "a physician who regularly performs abortions. Defendants in both actions consist of state officials charged with implementing and enforcing the Act. They are the Attorney General of Illinois, the Director of the Illinois Department of Public Health, and the State’s Attorney of Cook County, who is sued in his official capacity and as the representative of a class of all other State’s Attorneys in Illinois. In addition, Dr. Eugene Diamond has sought and obtained leave to intervene as a party defendant. Dr. Diamond presents arguments on behalf of parents of minor pregnant girls, husbands, viable and nonviable unborn fetuses and aborted fetuses who survive the abortion. Our scrutiny of the Act is based on the three leading substantive Supreme Court decisions on abortions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Planned Parenthood Association of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Before addressing the merits of the complex issues presented, it will be helpful to restate briefly the general principles established by the Court, and some implications of those principles. Wade and Bolton established that the constitutionally protected right of privacy encompasses a woman’s decision to terminate her pregnancy, but that her right is not absolute. The extent to which a state may regulate or even override the woman’s right increases throughout the three stages of pregnancy. During the first trimester, the abortion decision must be left to the woman and the medical judgment of her attending physician. During the second trimester the state may impose regulations which are rationally related to the legitimate state interest in the woman’s health. After fetus viability, the state interest in fetal life becomes compelling and the state may prohibit abortions except when necessary to preserve the life or health of the woman. Wade, supra, 410 U.S., at 164, 93 S.Ct. 705. Plaintiffs rely on a.number of decisions holding that certain abortion regulations are unconstitutional because they apply to all trimesters of pregnancy and because they impose an extra" }, { "docid": "19681297", "title": "", "text": "abortion as required by section 3 of this act” (insofar as those consent requirements are valid), and to the extent that it provides that “[a] 11 information and documents required by this subsection shall be treated with confidentiality customarily accorded to medical records.” . The recent order of the Supreme Court in Connecticut v. Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam), is noted. There the Supreme Court reversed the holding of the state supreme court that the Connecticut abortion statute, similar to the Texas statute that was struck down in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), could not support the conviction of a non-physician for attempting to procure an abortion. Observing that Roe v. Wade recognized only a right to an abortion “performed by a competent, licensed physician, under safe, clinical conditions,” id. at 120, 93 S.Ct. at 710, the Supreme Court stated: Roe teaches that a state cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. Literal reading of the Supreme Court’s phraseology might lead to the conclusion that any restriction by the state of a woman’s right to an abortion during the first trimester — including the condition that a minor obtain, prior to abortion, the consent of a parent or one in looo parentis — is unconstitutional. However, I am not persuaded by such an interpretation. This is so because the Supreme Court in Menillo was addressing an issue far removed from that under consideration here. The question in Menillo was simply the constitutionality, under Roe, of state statutes that penalize the procurement or administration of an abortion by a non-physician." }, { "docid": "23441945", "title": "", "text": "The Court went on to say that the State has a valid interest in the mother’s health, which becomes compelling after the first trimester of pregnancy, and also a valid interest in the protection of a potential human life, which becomes compelling when the fetus becomes viable, usually during the third trimester of pregnancy. Id. at 163-64, 93 S.Ct. 705. But the Court concluded that during the first trimester “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” id. at 164, 93 S.Ct. at 732, “free of interference by the State.” Id. at 163, 93 S.Ct. at 732. Decisions subsequent to Roe make clear that not all regulation of first trimester abortions is impermissible. If the challenged state action does not impinge upon a woman’s decision to have an abortion and does not place obstacles in the path of effectuating that decision, the regulation need only be justified by a rational relationship to a legitimate state purpose. Maher v. Roe, 432 U.S. 464, 478-80, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (state funding for childbirth but not abortion permissible). See Menillo v. Connecticut, 423 U.S. 9, 11, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam) (state criminal statute proscribing unlicensed physician from performing abortions does not impinge on abortion decision); Baird v. Department of Public Health, 599 F.2d 1098 at 1102 (1st Cir. 1979). If the regulation does impinge upon a woman’s abortion decision or the means of effectuating it, the regulation still “is not unconstitutional unless it unduly burdens the right to seek an abortion.” Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (Belotti I) (emphasis supplied). See also Maher v. Roe, supra, 432 U.S. at 473-74, 97 S.Ct. 2376. If the regulation unduly burdens the abortion decision, it must be justified by a compelling state interest. Carey v. Population Services International, 431 U.S. 678, 686, 688, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705. If, on the other hand, the" }, { "docid": "23022344", "title": "", "text": "Marshan, Minn., 245 N.W.2d 819 (1976). We advance from the premise that Planned Parenthood’s abortion clinic is to perform only first trimester abortions. Therefore, by denying to pregnant women the opportunity to use Planned Parenthood’s unique abortion facility, the ordinance interfered with the pregnant woman’s right to secure and Planned Parenthood’s ability to provide first trimester abortion services in the St. Paul area. The Supreme Court has ruled that the state’s power to regulate the abortion process for the protection of maternal health exists only during the second trimester of pregnancy. With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact * * * that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is perform the abortion; as to the licen-sure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. at 731. Despite this sweeping pronouncement, the Supreme Court has granted the states limited authority to regulate the first trimester abortion procedure when necessary to assure that an abortion at that stage is “as safe for the woman as normal childbirth at term * * *Connecticut v. Menillo, 423 U.S. 9, 11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975) (allowing states to proscribe first trimester abortions by nonphysicians); see Hodgson v. Lawson, 542 F.2d 1350, 1357-58 (8th Cir. 1976). Applying these" }, { "docid": "17310546", "title": "", "text": "that regulations limiting fundamental rights may be justified only by some compelling state interest. Further, any legislative enactment which affects such rights must be narrowly drawn to express only the legitimate state interest at stake. The first point at which the Supreme Court identified a compelling state interest — an interest in the health of the pregnant woman — was “at approximately the end of the first trimester.” Id. at 163, 93 S.Ct. at 732. However, after reviewing Supreme Court decisions subsequent to Roe v. Wade, the district court concluded that a state may impose certain limitations on the right to an abortion, even in the first trimester, so long as these regulations do not “unduly burden” the decision-making process and are rationally related to a legitimate purpose of the state. This conclusion was summarized in the following language of the district court: It becomes clear, therefore, from an examination of the cases decided since Roe, that not all regulation of first trimester abortion providers is impermissible. An absolute prohibition of first trimester abortions could only be justified by a compelling state interest. Likewise, regulations that afford the power to veto a woman’s decision to terminate her pregnancy must be supported by a compelling state interest. See [Planned Parenthood of Central Mo. v.] Danforth, 428 U.S. [52] at 67-72, 96 S.Ct. 2831 [at 2840-2842, 49 L.Ed.2d 788]. Regulations that interfere with a woman’s privacy to a lesser degree, however, require a lesser showing by the state to withstand constitutional attack: “As Whalen [v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)] makes clear, the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it.” Maher [v. Roe], supra 432 U.S. [464] at 473, 97 S.Ct. [2376] at 2382 [53 L.Ed.2d 484]. Accordingly, the Court must determine the degree that each section of Ordinance Number 160-1978 interferes with a woman’s constitutional right, in consultation with her physician, to choose to terminate her pregnancy. That interference must then be weighed against any valid state interest" }, { "docid": "23022345", "title": "", "text": "the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is perform the abortion; as to the licen-sure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. at 731. Despite this sweeping pronouncement, the Supreme Court has granted the states limited authority to regulate the first trimester abortion procedure when necessary to assure that an abortion at that stage is “as safe for the woman as normal childbirth at term * * *Connecticut v. Menillo, 423 U.S. 9, 11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975) (allowing states to proscribe first trimester abortions by nonphysicians); see Hodgson v. Lawson, 542 F.2d 1350, 1357-58 (8th Cir. 1976). Applying these standards to the present case, it appears probable that Planned Parenthood will prevail on its claim that the ordinance is invalid. First, defendants’ argument that they are constitutionally entitled to control the construction and operation of first trimester abortion facilities has been undermined by recent case law. In Arnold v. Sendak, 416 F.Supp. 22 (S.D.Ind.1976), a three-judge district court invalidated an Indiana statute requiring all abortions to be performed “in a hospital or a licensed health facility * * which offers the basic safeguards as provided by a hospital admission, and has immediate hospital backup * * *The court ruled that this statute, by attempting to regulate where first trimester abortions can be performed, runs afoul of Roe v. Wade, supra, and Doe v. Bolton, supra. This ruling was summarily affirmed by the Supreme Court. Sendak v. Arnold, 968 U.S. 429, 97 S.Ct. 476, 50 L.Ed.2d 579 (1976). This summary affirmance, which constitutes a disposition on the merits of the case, see Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223" }, { "docid": "3324226", "title": "", "text": "facially clear, the Court finds that abstention is inappropriate on that issue as well. . Jones v. Smith, supra. . Whether the statute’s failure to distinguish on the basis of trimesters or “viability” would, of itself, raise an arguable constitutional infirmity in light of Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), was neither advanced nor argued to the Court. See also Roe v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 35 L.Ed.2d 147. . Eisenstadt v. Baird, supra, 405 U.S. at 453, 92 S.Ct. at 1038. . 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). . Id., at 153-54, 93 S.Ct. at 727. . Id., at 155, 93 S.Ct. at 728. . For the Supreme Court’s most recent discussion of the “viability” standard, see Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). . Roe v. Wade, supra, 410 U.S. at 164, 163, 93 S.Ct. at 732. . See, e. g., Friendship Medical Center v. Chicago Bd. of Health, 505 F.2d 1141, 1148-52 (7th Cir. 1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). . See Maher v. Roe, 432 U.S. 464, 478-80, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (upholding Connecticut welfare regulations that fund childbirth but do not pay for an abortion unless a physician certifies the abortion is “medically necessary”); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (Connecticut criminal statute proscribing unlicensed physician from performing abortions does not impinge on abortion decision). . Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). . See Carey v. Population Services International, 431 U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705. Compare Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (striking down statute requiring that abortions be performed only in accredited hospitals and that three-doctor committee approve all abortions) with Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788" }, { "docid": "13968581", "title": "", "text": "Court. The Supreme Court held it was without jurisdiction to hear the direct appeal so proceedings resumed in this Court. Because of the similarity of many of the issues raised here with those raised in Planned Parenthood of Central Missouri v. Danforth, we have awaited the decision of the Supreme Court in that case. -U.S. -, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). With that decision now before us, we affirm in part and reverse in part. In Roe, the Supreme Court concluded that the fundamental right of privacy, whether rooted in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action or the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. Roe v. Wade, supra, 410 U.S. at 153, 93 S.Ct. 705. The woman’s right is not absolute; rather at some point in pregnancy, a state’s interest in safeguarding health, maintaining medical standards and protecting potential life “become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” Id. at 154, 93 S.Ct. at 727. In Planned Parenthood of Central Missouri v. Danforth, supra,-U.S. at---, 96 S.Ct. at 2837, the Court restated the conclusion of Roe: [T]he permissibility of state regulation was to be viewed in three stages: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” without interference from the State.' The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for" }, { "docid": "16450021", "title": "", "text": "Menillo, 171 Conn. 141, 368 A.2d 136, 137 (1976). A jury found Menillo guilty under a Connecticut statute, which prescribes that “any person who gives or administers to any woman, or advises or causes her to take or use anything ..., with the intent to procure upon her a miscarriage or abortion, unless the same is necessary to preserve her life or that of her unborn child, shall be fined ... or imprisoned.” Menillo, 423 U.S. at 10 n. 1, 96 S.Ct. 170. The Connecticut Supreme Court overturned Menillo’s conviction, holding that the statute was “null and void” under federal law. Id. at 9, 96 S.Ct. 170. The U.S. Supreme Court vacated and reinstated Menillo’s conviction. Id. The U.S. Supreme Court stated that Roe supported the “continued enforceability of criminal abortion statutes against nonphysicians.” Id. at 10, 96 S.Ct. 170. The Court explained: Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State’s interest in maternal health is predicated upon the first trimester abortion’s being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman.... Even during the first trimester of the pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference. Id. at 10-11, 96 S.Ct. 170. Like Roe, Menillo also does not discuss the issue presented here: whether the state can impose criminal liability on pregnant women for failing to abide by the state’s abortion statutes. Menillo does not uphold the prosecution of pregnant women who undergo abortions in a manner not prescribed by statute. The statute at issue in Menillo was directed only against the person who commits or attempts to commit the act on the pregnant" }, { "docid": "13968594", "title": "", "text": "respect a patient’s confidence and privacy, as these do here, are permissible regardless of the stage of pregnancy. Id. at--, 96 S.Ct. 2831. F. Regulations. The appellees challenge Minn.Stat. §§ 145.411, subd. 4, 145.-412, subd. 1(3), and 145.416 which read together subject the abortion decision, even during the first trimester, to regulations promulgated by the state board of health. The District Court found these provisions to be unconstitutional to the extent they are applied to the first trimester abortions. Hodgson v. Anderson, supra at 1017. We disagree. In Connecticut v. Menillo, 423 U.S. 9, 10-11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975), the Court stated: Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State’s interest in maternal health is predicated upon the first trimester abortion being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. Thus, the state has the power to insure that the first trimester abortions, like other medical procedures, are performed under conditions providing for the maximum safety of the patient. Statutory provisions which merely authorize the adoption of regulations, albeit during the first trimester, are not unconstitutional. See Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554, 576 (E.D.Pa.1975). Accordingly, we reverse the finding of the District Court as to the unconstitutionality of the following enabling provisions: Minn.Stat. §§ 145.411, subd. 4; 145.412, subd. 1(3); and 145.416. Any regulations promulgated under such enabling statutes must, of course, comply with the requirements of the Supreme Court. A state can impose the same regulations on a clinic, specifically built to perform abortions during the first trimester, that are imposed on other clinics that perform surgical procedures requiring approximately the same degree of skill and care as the performance" }, { "docid": "3149867", "title": "", "text": "all inconceivable that women who seek abortions will be dissuaded from challenging restrictions on their right to one during the first trimester, and will instead enter facilities that comply with the Board of Health’s regulations. This would then leave unchallenged, except for the efforts of these plaintiffs, the allegedly impermissible restrictions on a pregnant woman’s right of privacy. Finally, there is another reason why we believe that plaintiffs should be permitted to assert the rights of pregnant women. To the extent that a woman’s right to an abortion during the first trimester is a fundamental one, it would be a wholly undesirable situation for physicians to be placed in the position of guessing at the risk of criminal liability whether they could honor and give effect to that right. For all of the foregoing reasons we believe the district court erred when it ruled that the plaintiffs could not attack the validity of the Abortion Regulations on the basis of right of privacy as espoused by the Roe decision. Ill Having decided that the plaintiffs do have standing to claim the Abortion Regulations unduly infringe upon the privacy of their patients, it is next necessary to consider whether the regulations can stand in light of the Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 755, 35 L.Ed.2d 147 (1973). In Roe the Court struck down as unconstitutional a Texas statute which made it a crime to procure or attempt an abortion except for the purpose of saving the life of the mother. The Court based its holding on a woman’s fundamental right of privacy. It stated: This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. 410 U.S. at 153, 93 S.Ct. at 727 (emphasis" }, { "docid": "7562528", "title": "", "text": "licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. Id. at 163, 93 S.Ct. at 731-32. Since Roe, the Court, along with the lower federal courts, has on numerous occasions clarified the constitutional standards which apply to regulations aimed at both first and second trimester abortions. Few restrictions on first trimester abortions have been upheld. For example, the Court upheld a requirement that all abortions be performed by a licensed physician. Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam). This requirement, apart from being endorsed in dictum in Roe, was upheld because “the State retains an interest in ensuring the validity of Roe’s factual assumption that ‘the first trimester abortion [is] as safe for a woman as normal childbirth at term,’ an assumption that ‘holds true only if the abortion is performed by medically competent personnel under conditions insuring the maximum safety of the woman.’ ” Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 n. 12, 103 S.Ct. 2481, 2492 n. 12, 76 L.Ed.2d 687 (quoting Menillo, 423 U.S. at 11, 96 S.Ct. at 171). Likewise, the Court upheld a state-required pathology examination which required tissues removed by abortion, like all other removed tissues, to be examined by a pathologist. Planned Parenthood Association, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). This was because such an examination was con sidered “absolutely necessary” from a medical standpoint and “ ‘abnormalities in the tissue may warn of serious, possibly fatal disorders.’ ” Id. at 487-89, 103 S.Ct. at 2523-24. According to the Court, certain regulations of even first trimester abortions that “ ‘have no significant impact on the woman’s exercise of her right [to" }, { "docid": "3149868", "title": "", "text": "do have standing to claim the Abortion Regulations unduly infringe upon the privacy of their patients, it is next necessary to consider whether the regulations can stand in light of the Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113, 93 S.Ct 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 755, 35 L.Ed.2d 147 (1973). In Roe the Court struck down as unconstitutional a Texas statute which made it a crime to procure or attempt an abortion except for the purpose of saving the life of the mother. The Court based its holding on a woman’s fundamental right of privacy. It stated: This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. 410 U.S. at 153, 93 S.Ct. at 727 (emphasis added). The Court went on to say, however: [T]hat the right, nonetheless, is not absolute and is subject to some limitations, and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. 410 U.S. at 155, 93 S.Ct. at 728. The Court in the course of its opinion made it very clear that prior to the end of the first trimester governmental concern with respect to maternal health could not be sufficient to overcome a woman’s right to decide to abort a pregnancy. With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who" } ]

[ { "docid": "20452778", "title": "", "text": "a black police officer who “reported overhearing racial slurs made by [other] police officers against black citizens” had not engaged in protected activity despite “opposing discrimination by co-employees against non-employees” because his “opposition was not directed at an unlawful employment practice of his employer.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.1999) (emphasis in original); see also Drumm v. SUNY Geneseo Coll., 486 Fed.Appx. 912, 914 (2d Cir.2012) (“[Plaintiffs allegations that her supervisor ‘berated’ her and made other harsh comments ... amount only to general allegations of mistreatment, and do not support an inference that plaintiff had a reasonable good faith belief that she was subject to gender discrimination.”). “As to the second element [of the prima facie case], implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini, 136 F.3d at 292. In Galdieri-Ambrosini, we affirmed a district court’s post-trial entry of judgment as a matter of law against a secretary who complained that she had been improperly required to work on her employer’s personal matters. We concluded that “there was no semblance of gender-oriented motivation in the events or conversations to which [the plaintiff] testified” and that the plaintiffs complaints to her supervisor “did not state that [she] viewed [her supervisor’s] actions as based on her gender, and there was nothing in her protests that could reasonably have led [the company] to understand that that was the nature of her objections.” Id. Here, Kelly’s claim founders on both the first and second requirements of the prima facie case. Although “[n]othing in our Title VII jurisprudence ... requires a plaintiff to append to each allegation of harassment the conclusory declaration ‘and this was done because of my sex,’ ” we do require “the allegation of factual circumstances that permit the inference that plaintiff was subjected to a hostile work environment because of her sex.” Gregory, 243 F.3d at 694. There is nothing in Kelly’s complaint, however, to" } ]

[ { "docid": "20434957", "title": "", "text": "v. Sun Microsystems, Inc., 520 F.Supp.2d 388, 403 (D.Conn. 2007). However, if an employee does not use key words such as “discrimination” or “gender,” the complaint must “lend itself to a reasonable inference of unlawful discrimination.” Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 521-22 (S.D.N.Y.2010). Applying these principles to the present dispute, any complaints containing relevant “buzzwords”—language such as “sex discrimination,” “male” or “female,” “gender,” “glass ceiling,” or “women’s work,” for example—are clearly gender-related complaints. Goldman Sachs could and should have reasonably understood them to be gender-related at the time they were made, and should now know that they are relevant for discovery purposes. However, “buzzwords” are not required for retaliation claims, nor should they be required at the discovery stage in a disparate treatment case. Given the broader scope of discovery in pattern-or-practice eases, together with the benefit of hindsight, complaints that were insufficient to alert Goldman Sachs to gender discrimination at the time they were made may be sufficiently related to gender to make them discoverable now. For example, “complaints from a female high-level manager about having to perform secretarial work,” while arguably failing to support a retaliation claim, International Healthcare Exchange, Inc. v. Global Healthcare Exchange, LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y.2007), could reasonably lead to evidence of gender discrimination and thus meet the broader relevance standard for discovery. See, e.g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 285, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (Marshall, J., dissenting); Rodriguez v. City of New York, 644 F.Supp.2d 168, 191-92 (E.D.N.Y.2008) (requiring female employee to pick up employer’s meals and answer his phone was evidence of gender discrimination); Giannone v. Deutsche Bank Securities, Inc., 392 F.Supp.2d 576 (S.D.N.Y.2005) (holding that delegation of secretarial tasks not within the scope of plaintiff’s position and not assigned to similarly situated men was sufficient to establish a prima facie case of gender discrimination). On the other hand, while the scope of discoverable complaints in disparate impact or disparate treatment eases is broader than that required to establish retaliation and encompasses more than just complaints with “magic words,” the plaintiffs’" }, { "docid": "12511212", "title": "", "text": "Golden Corral argues that it is entitled to summary judgment on plaintiffs Title VII retaliation claim because plaintiff cannot establish a prima facie case of retaliation. Plaintiff does not respond to defendant’s arguments regarding her retaliation claim. In her complaint, plaintiff alleges that “Defendants retaliated against Plaintiff for opposing illegal sexual harassment. The retaliation took the form of physical and verbal abuse, denial of privileges previously freely given, and was so unrelenting that it ultimately resulted in Plaintiffs constructive discharge.” (Complaint, ¶ 42). To establish a prima facie case of retaliation, a plaintiff must show that: “(1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression.” Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998). Statutorily Protected Expression Opposition to illegal discrimination is statutorily protected expression. 42 U.S.C. § 2000e-3(a). Plaintiff alleges that she opposed unlawful sexual harassment. However, plaintiff does not claim to have reported the alleged sexual harassment to any of Gibson’s superiors other than Barnes. (Plaintiffs deposition, pp. 164-65). The transcript of plaintiffs conversation with Barnes reveals that plaintiff did not oppose, discuss or suggest unlawful sex discrimination during that conversation. (Plaintiffs Exhibit B). Plaintiff has directed the court to no evidence that she opposed illegal sexual harassment in any manner other than speaking with Barnes about Gibson’s arm-grabbing. If a reasonable person in Barnes’ position would have understood that plaintiff was complaining about sexual harassment, the conversation would constitute protected opposition. See Burns v. Republic Savings Bank, 25 F.Supp.2d 809 (N.D.Ohio 1998) (finding protected opposition where a reasonable person would have understood that plaintiff was threatening a discrimination lawsuit). It is well-established that an employee’s express complaints to supervisors about perceived discriminatory practices constitutes protected activity.... At the other end of the spectrum, however, the “wide range” of protected activity clearly does not include those situations where the opposition relates not to unlawful employment practices but to a personal grievance.... Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers" }, { "docid": "22890733", "title": "", "text": "a fight, purported harassment was not gender-based and was not sufficiently severe or pervasive). See also Baskerville, 50 F.3d at 430-31 (overturning verdict because evidence that her male superior called her “pretty girl,” commented on her attire, and made “vulgar banter tinged with sexual innuendo” did not establish actionable Title VII claim). Accordingly, we hold in this case that as a matter of law the conduct of which Hopkins complains, spread over seven years with significant time gaps between incidents, does not create a sufficiently hostile environment on which to rest a Title VII claim. Because we conclude that Swadow’s alleged conduct was not sufficiently severe or pervasive for Hopkins to establish a prima facie case of sexual harassment under Title VII, we do not reach the question of whether it was directed at Hopkins because of his sex. IV Hopkins also contends that the district court erred in dismissing his claim that BG & E retaliated against him for complaining to management about Swadow’s offensive conduct and for filing an EEOC complaint that alleged discriminatory sexual harassment. The district court concluded that Hopkins did not need to prevail on his underlying discrimination claim to succeed on his retaliation claim, but that he had failed to show that BG & E had taken any adverse employment action against him. Hopkins, 871 F.Supp. at 835-37. We agree. Title VII prohibits an employer from discriminating against an employee in retaliation for that employee’s opposition to, or complaint about, an unlawful employment practice. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Hopkins must show that (1) he engaged in protected activity; (2) his employer took adverse employment action against him; and (3) a sufficient causal connection existed between his protected activity and his employer’s adverse employment action. See McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir.1991). The record in this case, considered in the light most favorable to Hopkins, reveals that BG & E’s entire Photographic Services Unit, including both Swadow’s and Hopkins’ posi tions, were eliminated as part of a 1,100-employee reduction in force and corporate restructuring" }, { "docid": "3403969", "title": "", "text": "The requirements for presenting a prima facie case of retaliation under the ADA are identical, except that the first prong requires a showing that the plaintiff “engaged in an activity protected by the ADA.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). a. Protected Activity Known by Defendants To satisfy the “protected activity” element of a retaliation claim under Title VII, the ADEA, or the ADA, a plaintiff “need only have had a good faith, reasonable belief that [s]he was opposing an employment practice made unlawful by” the relevant statute. Kessler, 461 F.3d at 210 (internal quotation marks omitted). “The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management .... ” Matima v. Celli, 228 F.3d 68, 78 (2d Cir.2000) (internal quotation marks omitted). “As to the second element, implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998). Plaintiffs Amended Complaint does not specify the conduct that Plaintiff claims to be the basis for her retaliation claims. She merely alleges that she “opposed conduct” that was unlawful under the ADEA and Title VII (Am. Compl. ¶¶ 110, 128), and that she “complained about the discriminatory conduct” that violated the ADEA, Title VII, and the ADA (id. ¶¶ 115, 130, 150). These amorphous assertions are bolstered by no evidence in the record from which a reasonable jury could conclude that Plaintiff ever engaged in protected activity in protesting discrimination or that Defendants understood or could reasonably have understood Plaintiff to have been opposing conduct that she believed in good faith violated Title VII or the ADEA. Although the record reflects that Plaintiff made a variety of complaints to District administrators and other staff during her active employment with the District, there is no evidence that Plaintiff ever characterized any" }, { "docid": "16588347", "title": "", "text": "No. 96 Civ. 6314,1998 WL 108004, at *8 (S.D.N.Y. March 12,1998). Here, Querry alleges that civil rights attorney Michael Sussman called defendants on or about January 21, 1997 to discuss “Oracle’s withholding of approval for treatments of [Querry’s] back; the repeated harassment [she] received by reason of her disabilities, the issuance of orders to force her to return to work when that was medically contra-indicated; [and] the City’s deliberate exacerbation of [Querry’s] stress and heart [condition].” While this conversation may be considered a complaint, it is inadequate to arise to a “protected activity” under Title VII or the ADA. First, Querry does not state whom Mr. Sussman called. It is therefore impossible to ascertain whether the City “knew or should have known” about the conversation. See Spurlock v. NYNEX, 949 F.Supp. 1022, 1032 (W.D.N.Y.1996) (allegations must “provide defendant with enough information whereby it can verify the existence of such a complaint”). Second, it cannot be ascertained from the allegations whether Mr. Sussman clearly articulated a violation of the civil rights laws. The allegations leave doubt as to how the City could have known that Sussman was alleging a violation of Title VII or the ADA. Cf. Brands-Kousaros v. Banco Di Napoli S.P.A., No. 97 Civ. 1673, 1997 WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997) (“the protected activity must involve some sort of complaint about a type of discrimination that [the civil rights laws] forbid[ ]”). Because Querry has failed to show that this conversation constituted a “protected activity” under the civil rights laws, she has not established a prima facie case of retaliation under Title VII or the ADA. Accordingly, this claim is dismissed. II. Claims Against Defendant Oracle Next, Querry alleges that defendant Oracle discriminated against her based on her gender and disability in violation of the Equal Protection Clause of the Fourteenth Amendment and tortiously interfered with her relationship with her treating physicians in violation of New York law. Oracle has moved to dismiss the Complaint on the grounds that, as a private corporation, it cannot violate the Fourteenth Amendment and that Querry has not pled the" }, { "docid": "10652147", "title": "", "text": "a “reasonable, good faith belief’ that Defendants’ allowing Abraham to work the early shift was an unlawful practice under Title VI, she nevertheless fails to offer any evidence that she complained about any discrimination contemporaneous to these events or before she was terminated. In particular, Plaintiff admits that at no time during any of her conversations with Patel or Ramcharitar did she say that she felt Abraham was receiving preferences because of her ethnicity, nor did Plaintiff ever say that she was being disfavored because of her race. (Henny Tr. 112-14; Ramcharitar Decl. ¶ 34; Patel Deck ¶¶ 6-7.) Indeed, the Court invited Plaintiffs counsel at oral argument to point to any evidence in the record that she complained that Abraham’s favorable treatment over Plaintiff was based on race or ethnicity, but counsel submitted nothing. Thus, Plaintiff has produced no evidence from which a reasonable jury could conclude that Defendants could have understood Plaintiffs complaints to be about racial or ethnic discrimination. Plaintiff therefore fails to make a prima facie case of retaliation under Title VII, and this claim is also dismissed. See Taylor v. Runyon, No. 97-CV-2425, 1997 WL 727488, at *6 (S.D.N.Y. Nov. 20, 1997) (granting a motion to dismiss a retaliation claim where plaintiff did “not establish supervisory awareness of his protected activities”); Mendoza v. SSC & B Lintas, New York, 913 F.Supp. 295, 301 (S.D.N.Y.1996) (no prima facie case of retaliation where supervisor was not aware of plaintiffs complaint at the time the adverse employment action taken). III. Conclusion For the reasons stated herein, Defendants’ motion for summary judgment is granted. The Clerk is respectfully directed to enter judgment for Defendants, terminate the pending motion (Dkt. No. 33), and close this case. SO ORDERED. . When questioned about this conversation at her deposition, Plaintiff did not mention the request for a stool. Plaintiff only discusses this request in her declaration. . Plaintiff argues that two of these absences should have been deemed \"authorized.” (PL's Statement of Material Facts (L. Civ. R. 56.1) ¶ 145.) As a factual matter, Plaintiffs time sheets do not list any of" }, { "docid": "20452776", "title": "", "text": "under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quotation marks omitted). To make out a prima facie case of retaliation, a plaintiff must demonstrate that “(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012). An employee’s complaint may qualify as protected activity, satisfying the first element of this test, “so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Gregory v. Daly, 243 F.3d 687, 701 (2d Cir.2001) (quotation marks omitted). And not just any law—the plaintiff is “required to have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VIL” McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir.2001); see also id. (vacating summary judgment where plaintiffs “belief that [defendant’s] alleged sexual harassment violated Title VII was reasonable”). “The reasonableness of the plaintiffs belief is to be assessed in light of the totality of the circumstances.” Galdieri-Ambrosini, 136 F.3d at 292. A plaintiffs belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form. For example, when a hospital administrator asserted that he had been terminated after complaining that a white employee had been “chosen over qualified black and other minority applicants,” we held that the administrator failed to make out a prima facie case because his “objections at the time neither pointed out discrimination against particular individuals nor discriminatory practices by [the employer]” and were thus “directed at something that, as it was alleged, is not properly within the definition of an ‘unlawful employment practice.’ ” Manoharan v. Columbia Univ. Coll, of Physicians & Surgeons, 842 F.2d 590, 593-94 (2d Cir.1988) (quoting 42 U.S.C. § 2000e-2 (j) (1982)). Similarly," }, { "docid": "14226981", "title": "", "text": "complaints must be sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII. Generalized complaints about a supervisor’s treatment are insufficient. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir.2011) (“Rojas II”) (affirming district court’s holding that plaintiff failed to state a prima facie case of retaliation because generalized complaint was not protected activity). “[C]omplaints centered on general allegations of harassment unrelated to race [] are not protected activity under Title VII.” Thomas v. iStar Fin., 438 F.Supp.2d 348, 365 (S.D.N.Y.2006) (holding that complaints about supervisor’s treatment, such as complaint that supervisor falsely accused plaintiff of sexually harassing a co-worker, could not form basis of retaliation claim), affd, 629 F.3d 276 (2d Cir.2010); see also Ruhling v. Tribune Co., No. CV 04-2430(ARL), 2007 WL 28283, at *21 (E.D.N.Y. Jan. 3, 2007) (holding that an internal complaint of favoritism was not protected activity where plaintiff had not framed complaint as involving discriminatory conduct). However, a plaintiff is not required to show that the conduct she opposed was in fact unlawful; it is sufficient if the plaintiff had a good faith, reasonable belief that she was opposing a practice prohibited by Title VII. Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 210 (2d Cir.2006); see also Wimmer v. Suffolk Cnty., 176 F.3d 125, 134 (2d Cir. 1999) (explaining that plaintiff “need not prove that the conditions against which he protested actually amounted to a violation of Title VII.”). Risco’s assertion that she engaged in protected activity on March 27, 2009 when she “plainly complained to the agency EEO officer of disability-related discrimination” is not supported by any evidence offered by Plaintiff. In fact, her assertion is “plainly” contradicted by her sworn and undisputed testimony that she did not believe she was being discriminated against when she contacted the Army EEO office in March 2009. (Def.’s 56.1 Stmt. ¶ 29 (citing Risco Dep. 40:6-9).) In any event, Risco’s March 27, 2009 email cannot satisfy the “protected activity” requirement of her prima facie case for two reasons. First, Risco’s complaint" }, { "docid": "14226982", "title": "", "text": "opposed was in fact unlawful; it is sufficient if the plaintiff had a good faith, reasonable belief that she was opposing a practice prohibited by Title VII. Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 210 (2d Cir.2006); see also Wimmer v. Suffolk Cnty., 176 F.3d 125, 134 (2d Cir. 1999) (explaining that plaintiff “need not prove that the conditions against which he protested actually amounted to a violation of Title VII.”). Risco’s assertion that she engaged in protected activity on March 27, 2009 when she “plainly complained to the agency EEO officer of disability-related discrimination” is not supported by any evidence offered by Plaintiff. In fact, her assertion is “plainly” contradicted by her sworn and undisputed testimony that she did not believe she was being discriminated against when she contacted the Army EEO office in March 2009. (Def.’s 56.1 Stmt. ¶ 29 (citing Risco Dep. 40:6-9).) In any event, Risco’s March 27, 2009 email cannot satisfy the “protected activity” requirement of her prima facie case for two reasons. First, Risco’s complaint was too generalized. See Rojas II, 660 F.3d at 103, 108 (plaintiffs complaint that co-worker was “making her life miserable” was too vague to be protected activity). Risco merely informed Burnett about Byrd’s alleged remark (“It’s probably mental”), and stated her desire to meet with Byrd and an EEO representative to discuss his remark. (Sussman Aff. Ex. 5.) Therefore, Defendant could not have reasonably understood her to be complaining of discrimination. Second, even if, assuming arguendo, Risco’s email was clearly framed in terms of discriminatory conduct, a complaint about disability-related discrimination cannot form the basis of a retaliation claim under Title VII, Thomas, 438 F.Supp.2d at 365, and Plaintiff did not assert an unlawful retaliation claim under the RHA. Therefore, the Court finds that the first instance of “protected activity” for the purpose of demonstrating a prima facie case of retaliation was the informal complaint of discrimination that Risco made on May 15, 2009. (Sussman Aff. Ex. 13.) In that informal complaint, Risco did clearly allege that she was discriminated against on the basis of" }, { "docid": "20434955", "title": "", "text": "on Zahorik misconstrues the nature of the present dispute. The plaintiffs do not seek discovery of non-gender-related complaints, such as those alleging race or age discrimination. Cf. Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 197 (D.N.J.2010) (permitting discovery of unrelated complaints to determine how defendant “identifies and assesses other forms of discrimination vis-a-vis gender and what, if any, steps they take to remedy the other forms of discrimination they find” (internal quotation marks omitted)). Rather, they seek discovery of all complaints made by female employees regarding compensation, promotion, or performance evaluation, including those complaints that appear to be based primarily on race or age, because they believe that these complaints are related to a disparate impact felt by female employees resulting from a pattern or practice of gender discrimination. In other words, the parties disagree about whether the complaints are gender-related, not whether discovery of non-gender-related complaints is also appropriate. In order to provide additional guidance to the parties for the remainder of discovery, a brief discussion is warranted regarding what qualifies as a “gender-related” complaint. Retaliation doctrine provides a helpful starting point. A plaintiff alleging retaliation as the basis for an employment discrimination claim must show that her employer was aware of her complaint and that it “understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 292 (2d Cir.1998); see also Mayers v. Emigrant Bancorp, Inc., 796 F.Supp.2d 434, 448 (S.D.N.Y.2011) (collecting cases). Courts must therefore determine whether an employer had sufficient notice that an employee’s complaint raised the issue of gender discrimination. “[T]here are no magic words that must be used when complaining” about the alleged discrimination in order to satisfy this requirement. Ramos v. City of New York, No. 96 Civ. 3787, 1997 WL 410493, at *3 (S.D.N.Y. July 22, 1997); see also Brown v. United Parcel Service, Inc., 406 Fed.Appx. 837, 840 (5th Cir. 2010); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006); Sitar v. Indiana Department of Transportation, 344 F.3d 720, 727 (7th Cir.2003); Kelley" }, { "docid": "20452784", "title": "", "text": "generously, and we do not require a sophisticated understanding on the part of a plaintiff of this relatively nuanced area of law, it is difficult to see how Kelly could have had even a subjectively reasonable, good-faith belief that her conduct was protected. She made no complaints that suggested a belief that she was being discriminated against on the basis of any trait, protected or otherwise. The success of her claim would require us to endorse not only her belief that the law of Title VII is something other than what it is, but also her apparent belief that the definition of “discrimination” is something other than what it is. We agree with the district court that Kelly has failed to allege facts demonstrating that “even a legally unsophisticated employee would have a good faith, reasonable belief that ... the Defendants’ preferential treatment of Joyce constituted discrimination [against Kelly] based on gender.” Kelly, 2012 WL 3241402, at *13. Moreover, even if Kelly had possessed such a belief, nothing in her behavior, as described in her complaint, would have allowed her employer to “reasonably have understood[ ] that [Kelly’s] opposition was directed at conduct prohibited by Title VII.” See Galdieri-Ambrosini, 136 F.3d at 292; see also Manoharan, 842 F.2d at 594 (plaintiffs complaints “neither pointed out discrimination against particular individuals nor discriminatory practices”). Although particular words such as “discrimination” are certainly not required to put an employer on notice of a protected complaint, neither are they sufficient to do so if nothing in the substance of the complaint suggests that the complained-of activity is, in fact, unlawfully discriminatory. See Foster v. Humane Soc’y of Rochester & Monroe Cnty., Inc., 724 F.Supp.2d 382, 395 (W.D.N.Y.2010) (dismissing retaliation claim when the plaintiffs “own allegations ... show instead that while she did complain about certain problems she was having at work, she did not complain that she was being discriminated against on account of her sex”); Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 521 (S.D.N.Y.2010) (Lynch, J.) (“[T]he overall content and context of [the plaintiffs] internal complaints suggest, at most, a consensual affair" }, { "docid": "22788797", "title": "", "text": "in retaliation for complaining to Massimo and others about Mumbach’s alleged sexual harassment. 1. Prima Facie Case. To establish a prima facie case of retaliation under Title VII, a plaintiff must show “(1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998); see McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.2001). Holtz’s termination occurred shortly after she complained to Massimo, the Director of Human Resources, about her confrontation with Cowan. That confrontation, in turn, arose from Holtz’s desire to avoid interaction with Mumbach, whom she alleges was sexually harassing her. Massimo investigated the incident, and her ensuing conversations with Holtz about the investigation and more broadly about Holtz’s stated desire to leave RCI eventually led to Holtz’s termination by Massimo and John Leyden, RCI’s Chief Financial Officer. The district court apparently concluded that Holtz’s complaint to Massimo consisted only of the accusation that Cowan had humiliated her in front of her coworkers. See Holtz, 1999 WL 1043866, at *5, 1999 U.S. Dist. LEXIS 17682, at *14-*15. The court seemed to be of the view that the complained of conduct, thus limited, could not objectively be viewed as discriminatory, and that Holtz’s complaint therefore did not constitute protected activity upon which a retaliation claim could be based. See McMenemy, 241 F.3d at 285 (“The plaintiff is ... required to have had a good faith, reasonable belief that [s]he was opposing an employment practice made unlawful by Title VIL”). But Holtz’s alleged protected activity included more than her complaints to Massimo about being humiliated by Co-wan. We conclude that Holtz raised a triable issue as to whether she engaged in additional protected activity by complaining of activity that she believed in good faith was illegal, and that the persons responsible for her termination were aware of her" }, { "docid": "10652146", "title": "", "text": "was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse action.’ ” Milne v. Navigant Consulting, No. 08-CV-8964, 2010 WL 4456853, at *4 (S.D.N.Y. Oct. 27, 2010) (quoting Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir.2006)). A plaintiff may satisfy the first requirement by showing that she “expressed] opposition to an employment practiee[ ] unlawful under Title VII” if she had a “reasonable, good faith belief that the employment practice complained of is unlawful.” Swift v. Countrywide Home Loans, Inc., 770 F.Supp.2d 483, 489 (E.D.N.Y.2011) (citations and internal quotation marks omitted). The second requirement, the employer’s awareness, means that the employer “understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998). Assuming, without deciding, that Plaintiff had a “reasonable, good faith belief’ that Defendants’ allowing Abraham to work the early shift was an unlawful practice under Title VI, she nevertheless fails to offer any evidence that she complained about any discrimination contemporaneous to these events or before she was terminated. In particular, Plaintiff admits that at no time during any of her conversations with Patel or Ramcharitar did she say that she felt Abraham was receiving preferences because of her ethnicity, nor did Plaintiff ever say that she was being disfavored because of her race. (Henny Tr. 112-14; Ramcharitar Decl. ¶ 34; Patel Deck ¶¶ 6-7.) Indeed, the Court invited Plaintiffs counsel at oral argument to point to any evidence in the record that she complained that Abraham’s favorable treatment over Plaintiff was based on race or ethnicity, but counsel submitted nothing. Thus, Plaintiff has produced no evidence from which a reasonable jury could conclude that Defendants could have understood Plaintiffs complaints to be about racial or ethnic discrimination. Plaintiff therefore fails to make a prima facie case of retaliation under Title" }, { "docid": "18548995", "title": "", "text": "a protected activity; 2) his employer was aware of that activity; 3) he suffered an action that would be reasonably likely to deter a person from engaging in a protected activity; and 4) that there was a causal connection between the protected activity and the action. If relevant, the McDonnell Douglas burden-shifting analysis also applies. 1. Protected Activity The Defendants argue that Gallo did not participate in a protected activity. First, they argue that plaintiff conceded he did not ever complain to anyone at Alitalia about Galli’s conduct. (Def. Rule 56.1 ¶ 45.) Second, they argue that Gallo only made generalized-ambiguous complaints about Libutti twice, and that as a matter of law, such complaints are not considered protected activity. See Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y. 2007) (“ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct do not constitute protected activity.”). Finally, the Defendants argue that plaintiffs complaints about discrimination against other employees are not protected because Gallo could not have reasonably believed that the other employees were in fact being discriminated against. The Defendants arguments are misplaced. There are disputed issues of fact, as plaintiff has testified that he (1) protected the jobs of employees whom Defendants wanted to fire for discriminatory reasons and (2) complained about Libutti’s conduct. Plaintiff testified that, after Libutti made a series of derogatory and discriminatory remarks about sexual orientation, plaintiff approached Libutti— his supervisor—and told him directly that such discriminatory conduct needed to stop immediately. Further, when Libutti then berated Gallo for such protests and made more discriminatory remarks, Gallo again told Libutti he opposed such practices. What the plaintiff testified he told Libutti is not generalized or ambiguous— it is direct. A direct complaint about prohibited conduct to a supervisor is a protected activity. Id. The Defendants argue that plaintiffs complaints about other discriminatory practices and schemes against other employees at Alitalia cannot be considered a protected activity because plaintiff could not have reasonably believed that these other employees were being discriminated against. In order for an activity to be" }, { "docid": "20434956", "title": "", "text": "“gender-related” complaint. Retaliation doctrine provides a helpful starting point. A plaintiff alleging retaliation as the basis for an employment discrimination claim must show that her employer was aware of her complaint and that it “understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 292 (2d Cir.1998); see also Mayers v. Emigrant Bancorp, Inc., 796 F.Supp.2d 434, 448 (S.D.N.Y.2011) (collecting cases). Courts must therefore determine whether an employer had sufficient notice that an employee’s complaint raised the issue of gender discrimination. “[T]here are no magic words that must be used when complaining” about the alleged discrimination in order to satisfy this requirement. Ramos v. City of New York, No. 96 Civ. 3787, 1997 WL 410493, at *3 (S.D.N.Y. July 22, 1997); see also Brown v. United Parcel Service, Inc., 406 Fed.Appx. 837, 840 (5th Cir. 2010); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006); Sitar v. Indiana Department of Transportation, 344 F.3d 720, 727 (7th Cir.2003); Kelley v. Sun Microsystems, Inc., 520 F.Supp.2d 388, 403 (D.Conn. 2007). However, if an employee does not use key words such as “discrimination” or “gender,” the complaint must “lend itself to a reasonable inference of unlawful discrimination.” Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 521-22 (S.D.N.Y.2010). Applying these principles to the present dispute, any complaints containing relevant “buzzwords”—language such as “sex discrimination,” “male” or “female,” “gender,” “glass ceiling,” or “women’s work,” for example—are clearly gender-related complaints. Goldman Sachs could and should have reasonably understood them to be gender-related at the time they were made, and should now know that they are relevant for discovery purposes. However, “buzzwords” are not required for retaliation claims, nor should they be required at the discovery stage in a disparate treatment case. Given the broader scope of discovery in pattern-or-practice eases, together with the benefit of hindsight, complaints that were insufficient to alert Goldman Sachs to gender discrimination at the time they were made may be sufficiently related to gender to make them discoverable now. For example, “complaints from a" }, { "docid": "13699449", "title": "", "text": "by this subchapter, or because he has made a charge ... in an investigation, proceeding, or hearing under this subehapter.” 42 U.S.C. § 2000e-3(a). Title VII retaliation claims follow the familiar three-part burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): To make out a prima facie case of retaliation, a plaintiff must make four showings: that (1) [he] engaged in a protected activity; (2) [his] employer was aware of this activity; (3) the employer took adverse employment action against [him]; and (4) a causal connection exists between the alleged adverse action and the protected activity. Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action. If the employer demonstrates a legitimate, non-discriminatory reason, then the burden shifts back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer’s action was, in fact, motivated by discriminatory retaliation. Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.2013) (internal citations and punctuation omitted). The Court agrees with HPD that Plaintiffs retaliation claim falters at the prima facie stage. HPD does not expressly contest that Plaintiff has satisfied the first two prongs of his prima facie case. Nor could it reasonably do so. Plaintiffs EEO Complaint, filed on April 10, 2008, clearly constitutes participation in a protected activity. Alston v. N.Y.C. Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y.1998) (“Plaintiffs filing and maintenance of her internal EEO complaint certainly put the NYCTA on notice that she was engaged in statutorily protected activity.”). Plaintiffs December 3, 2007 Donovan Email and March 10, 2008 Lieber Email also constitute protected activities. Hubbard v. Total Communications, Inc., 347 Fed.Appx. 679, 681 (2d Cir.2009) (“[An] informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VIL”); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir.1992) (“[A]n internal complaint to company management ... is protected activity within the policies of Title VII.”). There is likewise no issue as" }, { "docid": "14226983", "title": "", "text": "was too generalized. See Rojas II, 660 F.3d at 103, 108 (plaintiffs complaint that co-worker was “making her life miserable” was too vague to be protected activity). Risco merely informed Burnett about Byrd’s alleged remark (“It’s probably mental”), and stated her desire to meet with Byrd and an EEO representative to discuss his remark. (Sussman Aff. Ex. 5.) Therefore, Defendant could not have reasonably understood her to be complaining of discrimination. Second, even if, assuming arguendo, Risco’s email was clearly framed in terms of discriminatory conduct, a complaint about disability-related discrimination cannot form the basis of a retaliation claim under Title VII, Thomas, 438 F.Supp.2d at 365, and Plaintiff did not assert an unlawful retaliation claim under the RHA. Therefore, the Court finds that the first instance of “protected activity” for the purpose of demonstrating a prima facie case of retaliation was the informal complaint of discrimination that Risco made on May 15, 2009. (Sussman Aff. Ex. 13.) In that informal complaint, Risco did clearly allege that she was discriminated against on the basis of her race. (Id.) 2. Employer Knowledge In order to satisfy the requirement of employer knowledge, an employee must have made it clear that she was opposing activity made illegal by Title VII. Galdieri-Ambrosini 136 F.3d at 292. “[I]mplicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that plaintiffs opposition was directed at conduct prohibited by Title VII.” Id. To satisfy this requirement, a plaintiff is not required to show that the individual decision-makers had knowledge of her protected activity; it is sufficient if the corporate entity has been put on notice of plaintiffs complaint of conduct violating Title VII. Gordon, 232 F.3d at 116. The Second Circuit has established that general corporate knowledge is sufficient to satisfy the second element of a prima facie case of retaliation. Id. An individual decisionmaker’s lack of knowledge of Risco’s protected activity does not undermine Defendant’s knowledge of her informal EEO complaint. Alston v. N.Y. City Transit Auth., 14 F.Supp.2d 308, 311 (S.D.N.Y.1998)" }, { "docid": "5591676", "title": "", "text": "v. State Univ. of N.Y., 704 F.Supp.2d 202, 227 (E.D.N.Y.2010) (“It is clearly established that ‘informal to supervisors constitute protected activity under Title VII.’ ” (citations However, while such complaints may be informal, they cannot be so vague or “generalized” that the employer could not “reasonably have understood[] that the plaintiffs complaint was directed at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir.2011) (alteration and citation omitted); see also Ellis, 975 F.Supp.2d at 280, 2013 WL 5460651, at *28 (E.D.N.Y.2013) (“When making the Plaintiff must do so in “sufficiently specific terms so that the employer is put on notice that the plaintiff believes he or she is being discriminated against on the basis of [the protected status].” ” (quoting Brummell v. Webster Central School Dist., No. 06-CV-6437, 2009 WL 232789, at *6 (W.D.N.Y. Jan. 29, 2009))); Int’l Healthcare Exch., 470 F.Supp.2d at 357 complaints that do not make the aware of alleged discriminatory misconduct do not constitute protected Plaintiffs actions in filing internal EEO complaints, on May 22, 2006 and September 11, 2009, and a formal charge with the EEOC on August 22, 2006, are protected activities. Plaintiffs May 2006 internal EEO complaint alleged that Sam-marco’s actions in promulgating the window directive were discriminatory, while her August 2006 EEOC charge complained of race and gender discrimination and harassment in connection with the window directive, as well as retaliation for making the internal complaint in May 2006, by assigning her “menial tasks.” (PL 56.1 ¶ 47; 2006 EEOC charge.) Plaintiffs September 2009 EEO complaint alleged retaliation for stating that she did not want to do the job of a sergeant. (See Defs. Ex. E and PI. Ex. S.) All of these are protected activities. In addition, because the EEO complaints were filed with DOF, Plaintiff has demonstrated that Defendants had knowledge of those protected activities. See Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir.2011) (“Even if the agents who carried out the adverse action did not know about the plaintiffs protected activity, the ‘knowledge’" }, { "docid": "18548994", "title": "", "text": "any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. The retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment, housing or a public accommodation or in a materially adverse change in the terms and conditions of employment, housing, or a public accommodation, provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity. NYC. Admin. Code § 8-107(7) (emphasis added). Thus, under the CHRL a plaintiff must show: 1) he engaged in a protected activity; 2) his employer was aware of that activity; 3) he suffered an action that would be reasonably likely to deter a person from engaging in a protected activity; and 4) that there was a causal connection between the protected activity and the action. If relevant, the McDonnell Douglas burden-shifting analysis also applies. 1. Protected Activity The Defendants argue that Gallo did not participate in a protected activity. First, they argue that plaintiff conceded he did not ever complain to anyone at Alitalia about Galli’s conduct. (Def. Rule 56.1 ¶ 45.) Second, they argue that Gallo only made generalized-ambiguous complaints about Libutti twice, and that as a matter of law, such complaints are not considered protected activity. See Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y. 2007) (“ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct do not constitute protected activity.”). Finally, the Defendants argue that plaintiffs complaints about discrimination against other employees are not protected because Gallo could not have reasonably believed" }, { "docid": "5591675", "title": "", "text": "Matima v. Celli, 228 F.3d 68, 78 (2d Cir.2000))). The complaint can be informal&emdash; an employee does not need to lodge a formal complaint of discrimination. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (“[T]he law is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection, this notion of ‘opposition’ includes activities such as ‘making complaints to management, writing critical letters to customers, protesting against discrimination by or by society in general, and support of co-workers who have filed formal charges.’ ” (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990))); Ellis, 975 F.Supp.2d at 281, 2013 WL 5460651, at *29 (“In order to oppose sexual harassment, [p]laintiff need not have filed a formal complaint as long as she complained of activity that she had a good faith, reasonable belief violated the law.”); Bennett v. Hofstra Univ., 842 F.Supp.2d 489, 500 (E.D.N.Y.2012) (noting that Title VII does not require a formal complaint); Martin v. State Univ. of N.Y., 704 F.Supp.2d 202, 227 (E.D.N.Y.2010) (“It is clearly established that ‘informal to supervisors constitute protected activity under Title VII.’ ” (citations However, while such complaints may be informal, they cannot be so vague or “generalized” that the employer could not “reasonably have understood[] that the plaintiffs complaint was directed at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir.2011) (alteration and citation omitted); see also Ellis, 975 F.Supp.2d at 280, 2013 WL 5460651, at *28 (E.D.N.Y.2013) (“When making the Plaintiff must do so in “sufficiently specific terms so that the employer is put on notice that the plaintiff believes he or she is being discriminated against on the basis of [the protected status].” ” (quoting Brummell v. Webster Central School Dist., No. 06-CV-6437, 2009 WL 232789, at *6 (W.D.N.Y. Jan. 29, 2009))); Int’l Healthcare Exch., 470 F.Supp.2d at 357 complaints that do not make the aware of alleged discriminatory misconduct do not constitute protected Plaintiffs actions in filing internal EEO complaints," } ]

[ { "docid": "3966839", "title": "", "text": "resumption of the Langley and Smith depositions; directing plaintiffs to serve proper responses to certain of his requests, and to identify those documents covered by his requests which are being withheld on grounds of relevancy or privilege; and compelling plaintiff Smith to provide authorizations for the release of her medical and psychological treatment records. 1. Langley and Smith Depositions Mr. Nolte argues that the depositions of plaintiffs Langley and Smith were wrongfully terminated, and that plaintiffs’ counsel acted improperly in instructing the deponents not to answer various questions propounded by Mr. Cook, on the ground that the questions were repetitive or had been “asked and answered.” Mr. Nolte seeks an order compelling the resumption of the Langley and Smith depositions and directing the deponents to answer the questions to which such objections were raised. The action of plaintiffs’ counsel in directing Langley and Smith not to answer certain questions on the ground that they were repetitive was clearly inappropriate. Rule 30(c) provides that “[ejvidence objected to shall be taken subject to objections.” Except where a question calls for privileged information, it is considered improper for counsel at a deposition to instruct the deponent not to answer. Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir.1977); The Great Southern Company v. Kleinman, No. 87 C 5822, slip op., 1991 WL 86060 (N.D.Ill. May 8, 1991) (1991 U.S.Dist. LEXIS 6559); National Microsales v. Chase Manhattan Bank, 761 F.Supp. 304, 307 (S.D.N.Y.1991); James v. Miller, No. 86 C 10081, slip op., 1988 WL 72290 (N.D.Ill. June 29, 1988) (1988 U.S.Dist. LEXIS 6793); Hanlin, 623 F.Supp. at 455; American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 177 (D.Mass.1985); Coates v. Johnson and Johnson, 85 F.R.D. 731, 733 (N.D.Ill.1980); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 519-20 (E.D.Tenn.1977); Shapiro, 38 F.R.D. at 311-12. More particularly, “the fact that a question is repetitive is not an appropriate ground for instructing a witness not to answer a question, since it does not involve a matter of privilege.” Gall v. St. Elizabeth Medical Center, 130 F.R.D. 85, 87 (S.D.Ohio 1990). “The proper procedure" } ]

[ { "docid": "4474542", "title": "", "text": "matter, it should be noted that a district court enjoys broad discretion, within the Federal Rules of Civil Procedure, to determine the manner and course of discovery. Eggleston v. Chicago Journeymen Plumbers, 657 F.2d 890, 902 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). Additionally, an overarching concern in deciding any discovery issue is the policy, inherent in the federal rules, of encouraging broad, open discovery to ensure a trial is “less a game of blind man’s b[l]uff and more a fair contest.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). With these thoughts as broad guidance, the court proceeds to attack the specifics of Plaintiffs motion and to interpret the discovery rules. 1. Production of Surveillance Tapes Defendant objects to Plaintiffs request for production of the non-evidentiary surveillance films on two grounds: (1) Nonevidentiary surveillance tapes are non-discoverable attorney work product under Federal Rule of Civil Procedure 26(b)(3); and (2) The surveillance videotapes are impeachment evidence which is protected from discovery by Local Rule 16.1(f)(5) of this court. Many courts have considered the discoverability of surveillance tapes which are intended to be introduced as evidence at trial. Almost uniformly, these courts have held that evidentiary films or videotapes must be provided to the opposing party prior to trial. E.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir.1993); Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505, 507-08 (D.Hawaii 1989); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150-51 (E.D.Pa.1973); Kane v. Her-Pet Refrigeration, Inc., 181 A.D.2d 257, 587 N.Y.S.2d 339 (1992); Williams v. Dixie Elec. Power Ass’n, 514 So.2d 332 (Miss.1987); Camelback Contractors, Inc. v. Industrial Comm’n, 125 Ariz. 205, 608 P.2d 782 (Ct.App.1980); Crist v. Goody, 31 Colo.App. 496, 507 P.2d 478 (1972). However, few courts have considered the precise issue presented in this case: Whether surveillance tapes of a Plaintiff which Defendant does not intend to introduce at trial, but which it possesses, are discoverable by the Plaintiff prior to trial. Those courts which have" }, { "docid": "12035465", "title": "", "text": "evidence.” The underlying philosophy of the discovery rules was stated by the Court in the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947) at 507, 67 S.Ct. 385, at 392, 91 L.Ed. 451: We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. (Footnote omitted.) The questions put to Wagnon were germane to the subject matter of the pending action and therefore properly within the scope of discovery. They should have been answered and, in any event, the action of plaintiff’s counsel in directing the deponent not to answer was highly improper. The Rule itself says “Evidence objected to shall be taken subject to the objections”, and Professor Wright says it means what it says, citing Shapiro v. Freeman, D.C.N.Y. 1965, 38 F.R.D. 308, for the doctrine: “Counsel for party had no right to impose silence or instruct witnesses not to answer and if he believed questions to be without scope of orders he should have done nothing more than state his objections.” Wright & Miller, Federal Practice and Procedure: Civil § 2113 at 419, n.22 (1970). We agree. If plaintiff’s counsel had any objection to the questions, under Rule 30(c) he should have placed it on the record and the evidence would have been taken subject to such objection. If counsel felt that the discovery procedures were being conducted in bad faith or abused in any manner, the appropriate action was to present the mat ter to the court by motion under Rule 30(d). On remand, the district court will vacate its judgment, grant to McFarland an opportunity to pursue interrogation of Mr. Wagnon that was previously frustrated by Purina, and thereafter consider whether or not to grant McFarland a new trial. If" }, { "docid": "1621786", "title": "", "text": "and (5) supplementation of the privilege log. A. Unanswered Deposition Questions In the case at issue, Plaintiffs counsel objected to a number of deposition questions posed during the depositions of Elyssa Rosenberg and Sean Gallagher. In many cases, the deponent then failed to respond to the question. Defendant has moved this Court to compel the testimony. Federal Rule of Civil Procedure 30(d)(1) forbids a party to instruct a deponent to refuse to answer a question unless such instruction is necessary to preserve a privilege, to enforce a limitation on evidence imposed by the court, or to permit the making of a motion for a protective order under Rule 30(d)(3). Where there is no claim of privilege in relation to questions asked on deposition, Rule 30(d)(1) and Rule 26 relating to the scope of discovery should be strictly applied. Preyer v. U.S. Lines, 64 F.R.D. 430 (E.D.Pa. 1973). See also Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y.1965) (the counsel for a party has no right to impose silence or instruct witnesses not to answer); Drew v. International Broth. of Sulphite and Paper Mill Workers, 37 F.R.D. 446 (D.D.C.1965) (the better practice would be for attorneys to note their objections during the deposition and permit their clients to answer the questions, leaving the resolution of objections to pretrial or trial); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir.1977) (citing Wright & Miller) (action of plaintiffs counsel in directing its principal witness not to answer questions posed during deposition was indefensible and at variance with discovery rules; if plaintiffs counsel had any objection, he should have placed it on the record and the evidence would have been taken subject to such objection.) The majority of the objections noted by Plaintiffs counsel in this case were not based on any privilege; thus, the witness will be redeposed and directed to answer questions where privilege is not asserted. The parties have agreed that depositions will be reconvened via telephone or in person, in New York, New York. B. Deposition Questions where Deponent indicated a “need to check records” During the depositions of" }, { "docid": "8160135", "title": "", "text": "tion not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. “If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.” . Rule 30(d) of the Federal Rules of Civil Procedure provides: “At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.” Rule 30(d) is the only authority allowing the interruption of a deposition. The usual procedure to follow when an objection is raised to a question propounded in a deposition is for the attorney who raises the objection to note his objection but to allow the question to be answered. Ralston Purina Co. v. McFarland, 550 F.2d 967, 973-974 (4 Cir. 1977); Banco Nat’l de Crédito v. Bank of America Nat’l Trust & Sav. Ass’n, 11 F.R.D. 497, 499 (N.D.Cal.1951). Where the objection raised is based on" }, { "docid": "8160136", "title": "", "text": "the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.” Rule 30(d) is the only authority allowing the interruption of a deposition. The usual procedure to follow when an objection is raised to a question propounded in a deposition is for the attorney who raises the objection to note his objection but to allow the question to be answered. Ralston Purina Co. v. McFarland, 550 F.2d 967, 973-974 (4 Cir. 1977); Banco Nat’l de Crédito v. Bank of America Nat’l Trust & Sav. Ass’n, 11 F.R.D. 497, 499 (N.D.Cal.1951). Where the objection raised is based on a privilege, however, the usual procedure obviously is not sufficient protection. The attorney should therefore halt the deposition and apply for a protective order pursuant to Rule 30(d). See Preyer v. United States Lines, 64 F.R.D. 430, 431 (E.D.Pa.1973), aff’d, 546 F.2d 418 (3 Cir. 1976); Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D.N.Y.1965). Although Rule 30(d) strictly construed does not allow the deposition to be halted simply because allegedly privileged information is sought, a strict application of Rule 30(d) when the objection involves a privilege would frustrate the values protected by the privilege. Shapiro v. Freeman, supra, 38 F.R.D. 308. . Abrams was President of PPI at the time of his deposition, and PPI therefore did have the power to instruct Abrams not to answer. The Court did not rely upon this fact, however, since the privilege asserted here apparently is that of HAS." }, { "docid": "21085518", "title": "", "text": "their depositions if necessary to refresh their recollection. If witnesses other than those initially designated are available to testify regarding discrete aspects of the defendant officer’s training history, those witnesses shall be made available for deposition as 30(b)(6) witnesses whose testimony is binding on the Department and the City. With respect to Commander Bruce, designated under 30(b)(6) to testify regarding the Police Department’s policy with respect to the use of deadly force, any further deposition shall be limited to two hours. Scope of Deposition under FRCP 30(b)(6) Plaintiff moves to compel answers to questions at deposition. Defendants object to the scope of questioning of witnesses pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure, and request a protective order limiting questioning to the subject matter of the designation in the deposition notice. In the alternative, Defendants suggest that Plaintiff adjourn the depositions of 30(b)(6) witnesses and re-open them in order to ask questions outside the scope of the designation. Generally, evidence objected to shall be taken subject to objections. FRCP 30(e). As a rule, instructions not to answer questions at a deposition are improper. Paparelli v. Prudential Ins. Co. of America, 108 F.R.D. 727, 730, (D.Mass.1985), citing International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C.1981). The only exception to Rule 30(c) is where serious harm would be caused. Id. An answer to a deposition question revealing privileged material or other confidential material is considered to cause some serious harm. Id. at 731. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3) (that the deposition is being conducted in bad faith or to annoy, embarrass or oppress the deponent or party.) FRCP 30(d)(3). The case law is unsettled whether witness testimony at a 30(b)(6) deposition is limited to the subject matter of the designation in the notice. The court in Paparelli strictly construed the scope of such a deposition. Accordingly, I rule that if a party opts" }, { "docid": "21085519", "title": "", "text": "not to answer questions at a deposition are improper. Paparelli v. Prudential Ins. Co. of America, 108 F.R.D. 727, 730, (D.Mass.1985), citing International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C.1981). The only exception to Rule 30(c) is where serious harm would be caused. Id. An answer to a deposition question revealing privileged material or other confidential material is considered to cause some serious harm. Id. at 731. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3) (that the deposition is being conducted in bad faith or to annoy, embarrass or oppress the deponent or party.) FRCP 30(d)(3). The case law is unsettled whether witness testimony at a 30(b)(6) deposition is limited to the subject matter of the designation in the notice. The court in Paparelli strictly construed the scope of such a deposition. Accordingly, I rule that if a party opts to employ the procedures of Rule 30(b)(6), F.R.Civ.P., to depose the representative of a corporation, that party must confine the examination to the matters stated “with reasonable particularity” which are contained in the Notice of Deposition. Id. at 730. At the same time, the court held that the defending party should not instruct the witness not to answer, but could adjourn the deposition to seek a protective order. Id. at 731. A deposing party is thus left to choose between giving up its right to ask questions outside the designation or re-opening the deposition at a different time under Rule 26(b)(1). This process is complicated by the limitation on depositions of Federal Rule of Civil Procedure 30(a)(2)(A) of ten per party if local rules or court orders do not extend the allowable number. The decision in Paparelli appears to ignore the liberal discovery requirements of Rule 26(b)(1), which states that “[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...” Limiting the scope" }, { "docid": "19023337", "title": "", "text": "put to Wagnon were germane to the subject matter of the pending action and therefore properly within the scope of discovery. They should have been answered and, in any event, the action of plaintiffs counsel in directing the deponent not to answer was highly improper. The Rule itself says “Evidence objected to shall be taken subject to the objections”, and Professor Wright says it means what it says, citing Shapiro v. Freeman, D.C.N.Y.1965, 38 F.R.D. 308, for the doctrine: “Counsel for party had no right to impose silence or instruct witnesses not to answer and if he believed questions to be without scope of orders he should have done nothing more than state his objections.” Wright & Miller, Federal Practice and Procedure: Civil § 2113 at 419, n. 22 (1970). We agree. If plaintiffs counsel had any objection to the questions, under Rule 30(c) he should have placed it on the record and the evidence would have been taken subject to such objection. If counsel felt that the discovery procedures were being conducted in bad faith or abused in any manner, the appropriate action was to present the matter to the court by motion under Rule 30(d). Ralston Purina Co. v. McFarland, 550 F.2d 967, 973-74 (4th Cir.1977); cf. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, U. A, 657 F.2d 890, 901 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982); Hearst/ ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 63 (E.D.Pa.1992); Smith v. Logansport Community School Corp., 139 F.R.D. 637, 647 (N.D.Ind.1991); First Tennessee Bank v. Federal Deposit Ins. Corp., 108 F.R.D. 640, 640 (E.D.Tenn.1985); International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C.1981). That a question is repetitive or irrelevant is not an appropriate ground for instructing a witness not to answer a question. See Hearst, 145 F.R.D. at 63 (citing Gall v. St. Elizabeth Medical Center, 130 F.R.D. 85, 87 (S.D.Ohio 1990)). Consistent with such cases, in 1993 the Rule was amended to provide that Any objection to evidence during" }, { "docid": "10519692", "title": "", "text": "review when an attorney does direct a witness not to answer. Several eases hold that the deponent then has an absolute duty to move for a protective order pursuant to Rules 26(c) and 30(d). See First Tennessee Bank v. Federal Deposit Insurance Corp., 108 F.R.D. 640, 641 (E.D.Tenn.1985); Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 731 (D.Mass.1985); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 175 (D.Mass.1985). However, Rule 37(a)(2)(B) specifically contemplates a motion to compel when a deponent refuses to answer a question, thus suggesting that it is acceptable for the witness to decline to answer and then wait to defend such a motion. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2116, at 430 (1970). There is, in any event, little functional difference between the two courses of action, since in both cases the party resisting discovery has the burden of supporting its position, see Nestle Foods Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 104, 112 (D.N.J.1990) (Rule 26(c)); Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352-53 (D.N.J.1990) (Rule 26(c)); Scott v. Arex, Inc., 124 F.R.D. 39, 42 (D.Conn.1989) (Rule 37); Compagnie Francaise D'Assurance Pour Le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42-43 (S.D.N.Y.1984) (Rule 37), and an award of reasonable expenses, including attorneys fees, is available to the party that prevails on the motion if his adversary’s position was not substantially justified. See Fed.R.Civ.P. 37(a)(4) (sanctions on motion to compel); Fed.R.Civ.P. 30(d)(3) (making same sanctions applicable to motion for protective order at deposition). Tape Recordings Counsel for Riddell is in possession of tape recordings made by an officer of Riddell identified as a Mr. Wingo of telephone conversations he had with Mr. Brooks. Seven tapes have been provided to Mr. Brooks’ attorney. Mr. Brooks now seeks unedited versions of all tapes made by Mr. Wingo as well as transcripts of the recordings. In addition, Mr. Brooks seeks information regarding the dates that Riddell’s counsel learned of the existence of the recordings, the dates and times of the conversations" }, { "docid": "7247086", "title": "", "text": "could also be tantamount to a complaint for the purpose of computing the start of the time limitations period. The district court, over the Secretary’s objection, granted the Union’s motion to compel disclosure and denied the Secretary’s motion for a protective order on December 21, 1987. On a hearing for reconsideration on January 7, 1988, the district court maintained its decision to grant the Union’s motion to compel, but indicated that it would enter a protective order forbidding counsel for the Union from disclosing the resulting information to Union officials. On January 23, 1988, with the order to compel in effect, counsel for the Union deposed an employee of the Department of Labor. Upon advice of counsel from the Department of Labor, the deposition witness declined to respond to questions from the Union’s counsel which were designed to elicit information concerning the names of individuals who provided witness statements to the Department of Labor. Thereafter the Union moved to dismiss the lawsuit, which the district court granted on January 26, 1988, because of the failure of the Secretary to comply with the discovery order. II A. District courts have broad discretion in matters relating to discovery. Brown-Bey v. United States, 720 F.2d 467, 470-471 (7th Cir.1983); Eggleston v. Chicago Journeymen Plumbers’ Local Union 130, 657 F.2d 890, 902 (7th Cir.1981), certiorari denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134. On review, courts of appeal will only reverse a decision of a district court relating to discovery upon a clear showing of an abuse of discretion. Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985). Similarly, Federal Rule of Civil Procedure 37(b) permits a district court to dismiss a case upon a showing of “willfulness, bad faith or fault on the part of the noncomplying party.” National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (per curiam); Societe Int’l v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255; Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1179 (7th Cir.1987)." }, { "docid": "12235769", "title": "", "text": "potential problems concerning reaffirmation agreements, reviewed her files for unenforceable and illegal reaffirmation agreements, and asked Edelman & Combs assist her. Upon finding the illegal and original unfiled reaffirmation agreement in Wiley’s file, Greenberg notified Wiley. Defendants also fail to cite any authority to show that this circumstance disqualifies class counsel or to explain how Wiley’s assertion of attorney-client privilege prevents her or her attorneys from adequately representing the class. The attorneys with Edelman & Combs have significant experience with class actions. Several of their attorneys have published treatises, books, and articles concerning class actions and consumer fraud. The firm’s experience in the area is extensive. Motion for Class Certification Ex. G. Defendants’ objections regarding the adequacy of class counsel are unfounded. Defendants made other arguments touching on the adequacy of Wiley as the class representative, namely that (1) she did not authorize the filing of the class action complaint; (2) she has no information as to CBS’s alleged scheme to collect upon illegal reaffirmation agreements; and (8) she chose to retain possession of her collateral, allegedly puts her at odds with potential class members who had unsecured debts or who may wish to rescind or contest the agreement. First, Wiley did authorize filing of the class action. Defendants seize upon a portion of Wiley’s deposition which at one point stated that she did not authorize filing of the class action. However, as other parts of deposition clearly indicated, Wiley reviewed and consented to the Complaint prior to its being filed. Wiley Deposition, pp. 74, 87. Second, a class representative is not required to hold specialized legal knowledge concerning the litigation. Gammon, 162 F.R.D. at 818 (citing Eggleston v. Chicago Journeymen Plumber’s Local Union No. 130 U.A., 657 F.2d 890, 896 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982)). Rather, a class representative may demonstrate interest by showing minimal knowledge of the basic facts of the law suit, by demonstrating general knowledge, and by participating in discovery. In re Discovery Zone Securities Litigation, 169 F.R.D. 104, 109 (N.D.Ill.1996). Wiley clearly indicates that she has" }, { "docid": "18226109", "title": "", "text": "37(a)(4)(A) would permit the award of expenses against a non-party who is summoned to a deposition by a subpoena duces tecum but not against a non-party who is served only with a subpoena but fails to appear for his deposition. Such an irrational interpretation has nothing to recommend it. The Starrs’ Position Was Not Substantially Justified Unfortunately for the Starrs, however, Fed.R.Civ.P. 37(a)(4)(A) does expressly permit the award of expenses against a nonparty deponent or his attorney or both of them who refuses to answer a question or questions at a deposition whose answers have to thereafter be compelled. Thus, the Starrs remain vulnerable to plaintiffs’ demand for their expenses occasioned by the direction of Richard Starr to his father not to answer certain questions. The question, once again, is whether that direction by Richard Starr and its acceptance by his father were “substantially justified.” As to one group of questions, the Starrs cannot possibly satisfy that criterion. At his son’s instruction, Irving Starr refused to answer questions to which he did not claim any privilege. Instead, his objections were based on relevance, an unclear question, or that the question had been asked and answered. Such directions to the witness not to answer are specifically prohibited by Fed. R.Civ.P. 30(d)(1). Behavior that contravenes a Federal Rule of Civil Procedure cannot be substantially justified, and Fed.R.Civ.P. 37(a)(2)(B) requires the payment of expenses when this particular rule is disobeyed and the opponent is required to move to compel the answers. See e.g., American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 176 (D.Mass.1985); International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Westinghouse Electric Corp., 91 F.R.D. 277 (D.D.C.1981). On occasion, Irving Starr asserted the attorney-client privilege or the attorney-client privilege and the work-product privi leges as grounds for his refusal to answer a question. While Fed. R. Civ. 30(d)(1) permits a deponent to refuse to answer a question to preserve a privilege, the assertion of the privilege must be substantially justified if that refusal is to avoid the imposition of the sanctions Fed.R.Civ.P. 37(a)(4)(A) permits. I cannot find that" }, { "docid": "19023338", "title": "", "text": "faith or abused in any manner, the appropriate action was to present the matter to the court by motion under Rule 30(d). Ralston Purina Co. v. McFarland, 550 F.2d 967, 973-74 (4th Cir.1977); cf. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, U. A, 657 F.2d 890, 901 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982); Hearst/ ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 63 (E.D.Pa.1992); Smith v. Logansport Community School Corp., 139 F.R.D. 637, 647 (N.D.Ind.1991); First Tennessee Bank v. Federal Deposit Ins. Corp., 108 F.R.D. 640, 640 (E.D.Tenn.1985); International Union of Elec., Radio and Mach. Workers, AFL-CIO v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C.1981). That a question is repetitive or irrelevant is not an appropriate ground for instructing a witness not to answer a question. See Hearst, 145 F.R.D. at 63 (citing Gall v. St. Elizabeth Medical Center, 130 F.R.D. 85, 87 (S.D.Ohio 1990)). Consistent with such cases, in 1993 the Rule was amended to provide that Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative manner and non-suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve the privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph 3. FedR.Civ.P. 30(d)(1). The Advisory Committee explains that The first sentence of new paragraph (1) provides that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner. Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond. While objections may, under the revised rule, be made during a deposition, they ordinarily should be limited to those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer. Under Rule 32(b), other objections can, even without the so-called “usual stipulation” preserving objections, be" }, { "docid": "16674022", "title": "", "text": "MEMORANDUM AND ORDER ROBERT P. MURRIAN, United States Magistrate. First Tennessee Bank (FTB) moves for an order compelling a non-party deponent, Charles R. Watson, Jr., to respond to certain questions which his attorney would not let him answer during a December 10, 1984, deposition. Watson is a resident of Florida but, according to the notice of deposition, his deposition was taken in Knoxville at his attorney’s office (Court File No. 186). It therefore appears that this is the proper forum. Rule 37(a)(1), Federal Rules of Civil Procedure. FTB also requests an order requiring Watson to appear in Knoxville again for further oral discovery and for an award of FTB’s costs and attorney’s fees in obtaining an order. Rule 37(a)(2), Federal Rules of Civil Procedure. A copy of the motion was served on Watson’s counsel but no response has been made during the time allowed. Any such response is therefore waived. Local Rules 11(f) and 12(b). It is well-settled that counsel should never instruct a witness not to answer a question during a deposition unless the question seeks privileged information or unless counsel wishes to adjourn the deposition for the purpose of seeking a protective order from what he or she believes is annoying, embarrassing, oppressive or bad faith conduct by adverse counsel. See Rules 26(b), 26(c), 30(c) and 30(d), Federal Rules of Civil Procedure; Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 (D.C.Tenn.1977). Here, counsel for Mr. Watson instructed him not to answer because he believed the question posed had been asked and answered earlier in the deposition. FTB claims that Watson had never been asked to summarize all of the reasons that he felt the loan in question was a “problem loan.” Brief, p. 9. Under the applicable rules, counsel for Mr. Watson should have sought a protective order if he believed he had grounds therefor. See Rules 26(c), 30(d), Federal Rules of Civil Procedure. He did not. He had a right to demand that the deposition be suspended, Rule 30(d), supra, while he took the matter up" }, { "docid": "1621787", "title": "", "text": "International Broth. of Sulphite and Paper Mill Workers, 37 F.R.D. 446 (D.D.C.1965) (the better practice would be for attorneys to note their objections during the deposition and permit their clients to answer the questions, leaving the resolution of objections to pretrial or trial); Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir.1977) (citing Wright & Miller) (action of plaintiffs counsel in directing its principal witness not to answer questions posed during deposition was indefensible and at variance with discovery rules; if plaintiffs counsel had any objection, he should have placed it on the record and the evidence would have been taken subject to such objection.) The majority of the objections noted by Plaintiffs counsel in this case were not based on any privilege; thus, the witness will be redeposed and directed to answer questions where privilege is not asserted. The parties have agreed that depositions will be reconvened via telephone or in person, in New York, New York. B. Deposition Questions where Deponent indicated a “need to check records” During the depositions of Sean Gallagher and Elyssa Rosenberg, the deponents stated their need to check various files before they could respond in full to the question. Defendant has moved for an order compelling deponents to “supplement” their previous responses. The Federal Rules of Civil Procedure impose no affirmative duty for deponents to supplement deposition testimony and the Court recognizes that witnesses assert a lack of knowledge or memory, if appropriate. Nonetheless, the deponents here affirmatively stated a need to check their files in order to respond. Based on these responses, the Defendant properly assumed that the deponents agreed to check their files and would supplement their responses. The Court finds that a deponent may not evade responding to deposition questions by indicating a need to check their files. Accordingly, Sean Gallagher and Elyssa Rosenberg will supplement their responses. C. Document Requests During the January 12 hearing, Plaintiff agreed to provide the Defendant with copies of all deposition transcripts and exhibits from any prior or pending litigation relating to the trademark “PILATES”, upon receipt of a specific list of" }, { "docid": "18361108", "title": "", "text": "504 (W.D.La.1988); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173 (D.Mass.1985). The Defendant did not follow this procedure. I, therefore, find that the Defendant’s manner of objecting to the questioning of Ms. Byers was improper. II. Plaintiffs Second Motion to Compel In Plaintiffs Second Motion to Compel, the Plaintiff asks the Court to enter an order compelling Gregory Giles to answer certain deposition questions which the Defendant directed Mr. Giles not to answer on the grounds of relevancy and scope. However, ease law as well as Rule 30(d)(1) clearly state that propounding an irrelevant question is “not an appropriate ground for instructing a witness not to answer a question.” Dravo Corp. v. Liberty Mutual Ins. Co., 164 F.R.D. 70, 74 (D.Neb.1995) (citing Hearst/ABG-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 63 (E.D.Pa.1992); Gall v. St. Elizabeth Medical Center, 130 F.R.D. 85, 87 (S.D.Ohio 1990)). See also National Microsales Corp. v. Chase Manhattan Bank, N.A., 761 F.Supp. 304, 307 (S.D.N.Y.1991); Hanlin v. Mitchelson, 623 F.Supp. 452, 455 (S.D.N.Y.1985), aff'd in part, rev’d on other grounds, 794 F.2d 834 (2nd Cir.1986); Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 461 (N.D.Cal.1978). As with Ms. Byers’ deposition testimony, the Defendant’s manner of objecting to the deposition questioning of Mr. Giles was improper. Accordingly, I find that the Plaintiffs Second Motion to Compel should likewise be granted. III. Conclusion At this point, I find that Ms. Byers should be considered an expert who is expected to testify and so is subject to the full gamut of discovery. This could change if the Defendant decides to withdraw Ms. Byers from the list of such witnesses. In that situation, Ms. Byers could be considered a consultant expert whose opinions may be subject to the work product doctrine. Nevertheless, I find that the Defendant did not properly reserve its objections in that situation nor with respect to Mr. Giles. Consequently, I conclude that granting the Plaintiff’s first and second motions to compel is appropriate. WHEREFORE, IT IS ORDERED that the Plaintiffs Motion to Compel and Second Motion to Compel are granted. IT IS" }, { "docid": "10519691", "title": "", "text": "no rule that a deponent may only be asked about that which is within his exclusive knowledge; the fact that information is publicly available does not place it beyond the bounds of a proper deposition. Accordingly, I decline to terminate the depositions of Mr. Nederlander and Mr. Toboroff. They shall appear on dates agreed upon by counsel until the depositions are completed. Finally, in responding to Riddell’s arguments on this issue, counsel for Mr. Brooks noted that Riddell’s attorney had on several occasions directed the deponents not to answer certain questions. Such conduct is generally inappropriate. Counsel may direct the witness not to answer a deposition question only under the following circumstances: (1) “when necessary to preserve a privilege,” (2) “to enforce a limitation on evidence directed by the court,” or (3) to protect a witness from an examination “being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” Fed.R.Civ.P. 30(d)(1) & (3). There is some debate over the proper avenue for obtaining court review when an attorney does direct a witness not to answer. Several eases hold that the deponent then has an absolute duty to move for a protective order pursuant to Rules 26(c) and 30(d). See First Tennessee Bank v. Federal Deposit Insurance Corp., 108 F.R.D. 640, 641 (E.D.Tenn.1985); Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 731 (D.Mass.1985); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 175 (D.Mass.1985). However, Rule 37(a)(2)(B) specifically contemplates a motion to compel when a deponent refuses to answer a question, thus suggesting that it is acceptable for the witness to decline to answer and then wait to defend such a motion. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2116, at 430 (1970). There is, in any event, little functional difference between the two courses of action, since in both cases the party resisting discovery has the burden of supporting its position, see Nestle Foods Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 104, 112 (D.N.J.1990) (Rule 26(c)); Johnston Development Group, Inc." }, { "docid": "19023341", "title": "", "text": "in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress Hartsock, the instructions not to answer were “highly improper.” Ralston Purina Co., supra; Fed.R.Civ.P. 30(d)(1); see, e.g., Bechard v. Costanzo, supra. If counsel had objections to the questions, he should have made an explicit 30(c) objection or presented the matter to the court through a proper motion under Rule 30(d)(3). See note 4 and accompanying text supra. Having failed to do so, I shall order that the deposition be resumed and that Hartsock answer all questions he was instructed not to answer. See Hearst, supra. C. Rule 30(b)(6) designee Finally, defendants object to Hastings’ alleged failure to produce a “knowledgeable and prepared” designee under Fed. R.Civ.P. 30(b)(6). (See Defendants’ Brief, at 23-26.) Rule 30(b)(6) provides in relevant part that the person designated to testify on the corporation’s behalf “shall testify as to matters known or reasonably available to the organization.” See note 3 and accompanying text supra. “If the rule is to promote effective discovery regarding corporations the spokesperson must be informed.” Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D.Neb.1989). Thus, “ ‘[the corporation] must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the interrogator] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the interrogator] as to the relevant subject matters.’” Id. (quoting Mitsui & Co. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D.P.R.1981)); see also S.E.C. v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y.1992); Marker v. Union Fidelity Life Insurance Co., 125 F.R.D. 121, 126 (M.D.N.C.1989) (under Rule- 30(b)(6), deponent “must not only produce such number of persons as will satisfy the request, but more importantly, prepare them so that they may give complete, knowledgeable and binding answers on behalf of the corporation.”) If no current employee has sufficient knowledge to provide the requested information, the party is obligated to “prepare [one or more witnesses] so that they may give complete, knowledgeable and binding answers on behalf" }, { "docid": "16666957", "title": "", "text": "it”. Accordingly, I rule that if a party opts to employ the procedures of Rule 30(b)(6), F.R.Civ.P., to depose the representative of a corporation, that party must confine the examination to the matters stated “with reasonable particularity” which are contained in the Notice of Deposition. The next issue is whether counsel for the corporation or organization who produced a witness pursuant to a Rule 30(b)(6) notice can instruct a witness not to answer if counsel for the party deposing the witness persists in asking questions which are beyond the scope of the matters listed in the 30(b)(6) notice. Rule 30(c), F.R.Civ.P., provides, in pertinent part: Evidence objected to shall be taken subject to objections. (Emphasis supplied.) This provision means that, as a general rule, instructions not to answer questions at a deposition are improper. The only exceptions are those canvassed in the recent case of International Union Of Electrical, Radio and Machine Workers, AFL-CIO, et al v. Westinghouse Electric Corporation, 91 F.R.D. 277 (D.D.C.1981) wherein Judge Flannery wrote: ... Rule 30(c) should not mandate disclosure of trade secrets or privileged information merely because such information is sought through a question asked on deposition, see Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 460-1 n. 4 (N.D.Cal.1978); strict application of the rule in these contexts would undermine the values traditionally thereby protected. In some cases, then, the mere fact of revelation of some types of information ... is sufficiently onerous to justify an exception to the policies of Rule 30(c). Recognizing this, however, the bounds of these exceptional situations must be structured so as not to emasculate the rule. Therefore, the touchstone for determining the existence of such an exception to Rule 30(c) should be the potential harm from disclosure, cf. Preyer v. United States Lines, Inc., 64 F.R.D. 430, 431 (E.D.Pa.1973) (indicating rule might not be applicable where refusal to an swer is based upon claim of privilege); in the absence of a showing of some serious harm likely to result from responding to any given question, the policies behind Rule 30(c) require the answer to be given. (Emphasis supplied;" }, { "docid": "18361107", "title": "", "text": "a consulting expert does not bar her deposition nor negate her obligation to produce the documents the Plaintiff has requested from her. C. Defendant’s Manner of Objecting I further note that the Defendant’s manner of objecting to the questioning of Ms. Byers raises the issue of whether those objections were properly reserved. The Defendant in this case directed Ms. Byers not to answer certain questions and did not file a motion for protective order. This lack of action forced the Plaintiff to file a motion to compel and thus put the burden on the Plaintiff to justify that motion. Rule 30(d)(1) specifically states that “[a] party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3).” In that situation, the party opposing the questioning must promptly file a motion for protective order. See, e.g., Hisaw v. Unisys Corp., 134 F.R.D. 151, 152 (W.D.La.1991); Nutmeg Insurance Co. v. At-well, Vogel & Sterling, 120 F.R.D. 504 (W.D.La.1988); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173 (D.Mass.1985). The Defendant did not follow this procedure. I, therefore, find that the Defendant’s manner of objecting to the questioning of Ms. Byers was improper. II. Plaintiffs Second Motion to Compel In Plaintiffs Second Motion to Compel, the Plaintiff asks the Court to enter an order compelling Gregory Giles to answer certain deposition questions which the Defendant directed Mr. Giles not to answer on the grounds of relevancy and scope. However, ease law as well as Rule 30(d)(1) clearly state that propounding an irrelevant question is “not an appropriate ground for instructing a witness not to answer a question.” Dravo Corp. v. Liberty Mutual Ins. Co., 164 F.R.D. 70, 74 (D.Neb.1995) (citing Hearst/ABG-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 63 (E.D.Pa.1992); Gall v. St. Elizabeth Medical Center, 130 F.R.D. 85, 87 (S.D.Ohio 1990)). See also National Microsales Corp. v. Chase Manhattan Bank, N.A., 761 F.Supp. 304, 307 (S.D.N.Y.1991); Hanlin v. Mitchelson, 623 F.Supp. 452, 455 (S.D.N.Y.1985), aff'd in part, rev’d" } ]

[ { "docid": "6843458", "title": "", "text": "advantage when she failed to list her discrimination claims on her schedule of assets. Omitting the discrimination claims from the schedule of assets appeared to benefit her because, by omitting the claims, she could keep any proceeds for herself and not have them become part of the bankruptcy estate. Thus, Barger’s knowledge of her discrimination claims and motive to conceal them are sufficient evidence from which to infer her intentional manipulation. See Burnes at 1287. The fact that Barger informed the trustee about her discrimination suit during the creditor’s meeting does not aid her cause. When the bankruptcy trustee asked Barger for the monetary value of the lawsuit, she informed him that she only sought reinstatement of her previous position with the City of Cartersville. Barger did not tell the trustee that she was also seeking backpay, liquidated damages, compensatory damages, and punitive damages. She did not inform the trustee about these additional damages even though she added them to her prayer for relief a mere two days before the creditors meeting. Thus, it seems clear that Barger deceived the trustee. The bankruptcy court reasoned away Barger’s conduct by concluding that it was ultimately the trustee’s responsibility to investigate the lawsuit as property of the estate. The Court is not persuaded by the bankruptcy court’s reasoning. The foremost responsibility in this matter was for Barger to fully disclose her assets. She did not satisfy her duty. Instead, she dissembled to the trustee and indicated that her discrimination claim had no monetary value. As such, the trustee can hardly be faulted for not further investigating Barger’s discrimination suit. Finally, Barger’s attempt to reopen the bankruptcy estate to include her discrimination claim hardly casts her in the good light she would like. She only sought to reopen the bankruptcy estate after the defendants moved the district court to enter summary judgment against her on judicial estoppel grounds. “Allowing [a debtor] to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if" } ]

[ { "docid": "8105891", "title": "", "text": "to him in June 2000. In any event, for the reasons set forth below, the Court need not decide at the present time whether to invoke the doctrine of judicial estoppel, or the good faith exception, to Graupner’s pre-petition civil rights claims. C. Remedy There remains the difficult issue of the remedy for Graupner’s failure to disclose his civil rights claims. The Court begins with the proposition that it is duty-bound to protect the integrity of the judicial system, including the integrity of proceedings before the bankruptcy court. That duty certainly takes precedence over any duty to afford a forum to a plaintiff to pursue a civil lawsuit, even a lawsuit involving serious civil rights violations. Nonetheless, simply dismissing Graupner’s pre-petition claims is not an entirely satisfactory result. It would create a potential windfall for defendants, who (if they have engaged in wrongful conduct) may thereby avoid liability altogether. The possibility that defendants engaged in wrongdoing is not simply speculative; indeed, as to the MLRC claim, the defendant Town of Brookfield — based on the actions of its employees' — -has already been finally adjudicated to have been at fault. Furthermore, dismissal of the claims, at least in theory, may be unfair to Graupner’s creditors, who should have an appropriate opportunity to apply any proceeds of those claims to satisfy Graupner’s debts. Finally, the Court has concluded that the bankruptcy estate is the real party in interest; under Fed.R.Civ.P. 17(a), “ ‘[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest....’” See Vidal v. Doral Bank Corp., 363 F.Supp.2d 19, 22 (D.P.R.2005) (staying dismissal to allow forty-five days for bankruptcy trustee to file motion seeking to substitute for debtor plaintiff; whether plaintiff had yet received discharge was unclear, and plaintiffs bankruptcy petition had only been filed one year earlier). Accordingly, and rather than dismiss the claims outright at this time, the" }, { "docid": "8105895", "title": "", "text": "with his new employer, referred to him as a \"thief” and \"criminal” and recommended that his employment be terminated. . The Town contends that the award for back pay was \"sufficient to satisfy his debts” in bankruptcy. There is no record evidence to verify this contention. . For the sake of simplicity, Graupner’s claims in this Court will be referred to as his \"civil rights claims,” as distinct from his claims before the MLRC for reinstatement and back pay. . Defendants did not distinguish in their motion between Graupner's claims that accrued prior to the bankruptcy petition (on June 7, 2000) and those accruing thereafter (e.g., the claims based on the October 21, 2000 detention and subsequent prosecution). . This section, formerly § 521(1), has been renumbered as § 521(a)(1) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, § 106(c)(1), Pub.L. No. 109-8, 119 Stat. 23 (2005). . The schedule called for disclosure of \"contingent and unliquidated claims of every nature.” Both the statutory retaliation claim (which was then pending before the MLRC) and the civil rights claims (which were eventually brought in this Court) easily fit that description. It is true that the relief requested before the MLRC may have been a traditionally equitable form of relief (back pay) rather than a traditionally legal form of relief (compensatory damages). Nevertheless, the cause of action before the MLRC is clearly a “legal or equitable interest of the debtor in property” where the back pay sought was for a period of pre-petition time — November 30, 1999, until June 7, 2000. See 11 U.S.C. § 541(a)(1); see generally 5 Collier at § 541.08 (\"causes of action belonging to the debtor at the time the case is commenced” included in bankruptcy estate). Therefore, it would be an asset available to the bankruptcy estate from which his debts could have been potentially satisfied. . Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir.2003) is distinguishable. There, the plaintiff reopened her bankruptcy to disclose her pre-petition employment discrimination claims in an apparent effort to resolve the standing issue. However, the" }, { "docid": "8105883", "title": "", "text": "that he had been awarded back pay, a substantial portion of which was for a period occurring prior to the petition; and that the decision had been upheld on appeal by the highest court in the Commonwealth. Nor did he estimate the value of either claim. In particular, he did not estimate the value of his MLRC claim, despite the fact that the Town had calculated his total back pay in the amount of $74,240.80 (less amounts received in mitigation); that he had received an offer of more than $86,000 in settlement of the entire claim; or that he refused to accept the offer on the grounds that he believed the value of the claim was far higher. The bankruptcy court was thus left with the false, impression that there was a single claim; that it was entirely contingent; that six years had passed without any resolution of the issue; and that the monetary value of the claim was unknown or insignificant. Under the circumstances, the pre-petition claims were not “properly scheduled” within the meaning of the bankruptcy code. See Jeffrey, 70 F.3d at 186; Tilley v. Anixter Inc., 332 B.R. 501, 510 (D.Conn.2005) (claim for intentional infliction of emotional distress arising from the defendants’ failure to pay child support not properly scheduled by virtue of debtor’s scheduling of a “back child support” claim); In re Tennyson, 313 B.R. at 405-406 (claims for mortgage rescission and for failure to honor mortgage rescission under Truth in Lending Act on a $58,000 mortgage not properly scheduled by virtue of debtors’ scheduling of the real property that was the subject of the underlying mortgage or by their scheduling of a “$2,000 TILA” claim); cf. Barger, 348 F.3d at 1296 (debtor’s oral response to trustee’s question regarding the monetary value of her case that “she sought only reinstatement” insufficient to preclude judicial estoppel where she had also sought back pay and various forms of damages). Because the bankruptcy court never received proper notice of the existence and value of Graupner’s civil rights claims, those claims were not abandoned in November 2005. The pre-petition civil" }, { "docid": "8105882", "title": "", "text": "estate. See 11 U.S.C. § 554(c). Even assuming complete disclosure, it is at least doubtful whether Graupner’s claims could have been abandoned by virtue of the 2005 re-opening, amendment, and closing. Graupner has cited no authority for the proposition that the reopening of a bankruptcy proceeding five years after its initial closing can cure a failure to disclose an asset in the first instance. Furthermore, because no trustee was appointed, it is not clear that the second closing could act as an abandonment by operation of law under § 554(c). In any event, the Court is not satisfied that Graupner’s filings in connection with the 2005 amendment were sufficient to satisfy his obligation to disclose his assets to the bankruptcy court. Even in 2005, Graupner did not make full disclosure of his claims. He did not indicate that he had brought not one but two sepa rate proceedings seeking monetary relief — one before the MLRC and one in this Court. He did not indicate that the MLRC proceeding had been decided in his favor; that he had been awarded back pay, a substantial portion of which was for a period occurring prior to the petition; and that the decision had been upheld on appeal by the highest court in the Commonwealth. Nor did he estimate the value of either claim. In particular, he did not estimate the value of his MLRC claim, despite the fact that the Town had calculated his total back pay in the amount of $74,240.80 (less amounts received in mitigation); that he had received an offer of more than $86,000 in settlement of the entire claim; or that he refused to accept the offer on the grounds that he believed the value of the claim was far higher. The bankruptcy court was thus left with the false, impression that there was a single claim; that it was entirely contingent; that six years had passed without any resolution of the issue; and that the monetary value of the claim was unknown or insignificant. Under the circumstances, the pre-petition claims were not “properly scheduled” within the meaning" }, { "docid": "8105881", "title": "", "text": "(1st Cir.1995) (citing Vreugdenhill v. Navistar Int’l Trans. Corp., 950 F.2d 524, 526 (8th Cir.1991)). It is undisputed that Graupner did not list any of his claims arising prior to June 7, 2000, on the schedule during the original bankruptcy proceeding; that is, he did not list either his MLRC claim or his civil rights claims, which were based essentially on the same events. He was clearly required to list both. Because the trustee was never made aware of those claims, they could not have been abandoned upon the closing of Graupner’s case in September 2000. The claims therefore remained the property of the estate. See Jeffrey, 70 F.3d at 186; Wieburg v. GTE Southwest Inc., 272 F.3d 302, 306 (5th Cir.2001). Graupner argues, however, that he made a proper disclosure to the bankruptcy court in 2005, when he amended his schedule and disclosed the existence of a “civil action for money damages.” He contends that when the case was again closed, the claims were abandoned and are therefore no longer property of the bankruptcy estate. See 11 U.S.C. § 554(c). Even assuming complete disclosure, it is at least doubtful whether Graupner’s claims could have been abandoned by virtue of the 2005 re-opening, amendment, and closing. Graupner has cited no authority for the proposition that the reopening of a bankruptcy proceeding five years after its initial closing can cure a failure to disclose an asset in the first instance. Furthermore, because no trustee was appointed, it is not clear that the second closing could act as an abandonment by operation of law under § 554(c). In any event, the Court is not satisfied that Graupner’s filings in connection with the 2005 amendment were sufficient to satisfy his obligation to disclose his assets to the bankruptcy court. Even in 2005, Graupner did not make full disclosure of his claims. He did not indicate that he had brought not one but two sepa rate proceedings seeking monetary relief — one before the MLRC and one in this Court. He did not indicate that the MLRC proceeding had been decided in his favor;" }, { "docid": "18800977", "title": "", "text": "DECISION DISMISSING CHAPTER 11 CASE JEROME FELLER, Bankruptcy Judge. The protagonists in this matter are not strangers to legal fray. Nicholas E. Purpura (“Purpura” or “Debtor”) and Barbara Maida (“Maida”), the Debtor’s former spouse, slugged it out for eight (8) years in a divorce action at various levels of the New York State court system. After exhausting his appellate remedies and still unable to make peace with the equitable distribution awards made in the divorce action, Purpura commenced this Chapter 11 case. Once again, Maida was frustrated in her efforts to realize the cash, stock and real estate sale proceeds awarded to her approximately three years prior to the inception of the Chapter 11 case. Before the Court is a multi-tiered motion of Maida seeking duplicative and redundant relief in her seemingly interminable efforts to collect her due from a former spouse who refuses to pay. Stripped of its surplusage, Maida seeks, essentially, to lift the automatic stay or, in the alternative, requests a dismissal of Purpura’s Chapter 11 case on the ground that it was not filed in good faith. This Chapter 11 case is a classic two party conflict properly resolved in the non-bankruptcy forum. It was strategically initiated in a futile attempt to forestall Maida’s collection efforts. Purpura’s cognizable debts are not significant, and his assets are more than sufficient to pay such debts. Moreover, the assets awarded Maida under a pre-petition divorce decree are her sole and separate property and do not constitute property of the Debtor’s estate. Nor does an obligation to turnover these assets to Maida represent “debts” of Purpura dischargeable in bankruptcy. The Chapter 11 reorganization process is properly employed to restructure debts, not to rewrite history. However, the only reorganization purpose of this Chapter 11 case is the Debtor’s desire to “reorganize” the pre-petition equitable distribution awards granted his former wife by a state court. This cannot be done. In sum, since no legitimate purpose is served by this Chapter 11 case, cause exists to dismiss under 11 U.S.C. § 1112(b). I. THE MATRIMONIAL ACTION Purpura and Maida were married in July" }, { "docid": "8105875", "title": "", "text": "(8) against Ackerman, Curchaine, and Lamothe for malicious prosecution. On May 25, 2005, Graupner was deposed. In the course of that deposition, defendants learned for the first time that he had filed for bankruptcy in June 2000. On August 12, 2005, defendants filed a motion for extension of time within which to file dispositive motions; in that motion, they specifically stated that they intended to challenge Graupner’s standing to bring his claims due to his failure to disclose them in the bankruptcy court. G. The Reopening of the Bankruptcy Proceeding On September 4, 2005 — nearly five years after the case was closed — the Graupners filed a motion in the bankruptcy court to reopen their case and amend their disclosures. In that motion, Graupner stated that his prior failure to list the MLRC claim was “due to inadvertence and his belief that it was not an asset, but a claim for job reinstatement.” On September 19, the bankruptcy court reopened the case. On September 26, it allowed Graupner to amend his financial disclosures. In his amended Schedule B, under the section requesting disclosure of “contingent and unliquidated claims of every nature” and the “estimated value of each,” he stated as follows: Civil action for money damages: the debtor estimates the value as unknown: The claims [sic] originates from 1999 and was a claim filed with the Massachusetts Labor Relations Board [sic] regarding the debtor husband’s claim for reinstatement as a police Sergeant with the Town of Brookfield and money damages were not requested: due to the passage of time, the debtor’s claim for employment reinstatement has become impractical and now the debtor husband can only recover money damages. At the time of the filing of the bankruptcy case the debtor husband did not list this asset due [to] inadvertence and his belief that it was not an asset but a claim for job reinstatement. Graupner thus did not advise the bankruptcy court that his claim with the MLRC had resulted in a May 2002 order in his favor that included back pay; that it had been upheld on appeal" }, { "docid": "8105870", "title": "", "text": "day, Ackerman and Churchy searched Griffin’s parked car, which contained information concerning their union activities. B. The MLR C Proceeding On November 15, 1999, plaintiffs filed a complaint with the Massachusetts Labor Relations Commission (“MLRC”) alleging that the Town had terminated their employment in retaliation for their efforts to organize a unión in violation of Mass. Gen. Laws ch. 150E, §§ 10(a)(3) and 10(a)(1). The MLRC complaint demanded that the “charging parties [be made] whole by reinstating them and restoring to them all benefits lost.” Thus, the complaint clearly sought monetary relief in addition to reinstatement. C. The Bankruptcy Proceeding On June 7, 2000, Graupner and his wife, Deborah, filed a voluntary petition for bankruptcy; Under bankruptcy court procedures, they were required to make complete disclosures of their assets , and liabilities. Among other things, Schedule B required them to list any “other contingent and unliquidated claims of every nature.” Although the MLRC claim sought monetary relief, and had been pending for more than six months at that point, the Graupners did not disclose it. The Graupners likewise did not disclose any potential civil rights claims they may have had. On July 10, 2000, the Graupners requested and obtained leave to amend • certain schedules, including Schedule B; however, they again failed to inclhde both the MLRC claim and any civil rights claims. The case was deemed to be a “no-asset” case, and the bankruptcy court discharged the Graupners on September 12, 2000. Several days later, the court closed the case and discharged the trustee. D. The Alleged Traffic Incident and Subsequent Prosecution On October 21, 2000, at about 10:45 p.m., Graupner was driving home from work through Brookfield, headed toward West Brookfield where he lived. He passed Brookfield police officers Derek Curchaine and James Lamothe, who were in their cruiser. They radioed West Brookfield police officers and instructed them to pull over and detain Graupner. The West Brookfield officers complied and detained him until Curchaine and Lamothe arrived. Chief Ackerman then arrived and issued Graupner a citation for speeding. Six days later, Graupner received citations issued by Lamothe for" }, { "docid": "19964831", "title": "", "text": "pending and potential claims. 11 U.S.C. § 521(1); In re Coastal Plains, Inc., 179 F.3d at 207-08. Generally, if a debtor fails to schedule an asset, and the trustee later discovers it, the trustee may reopen the bankruptcy case to administer the asset on behalf of the creditors. 11 U.S.C. § 350(b); 3 CollieR ON Bankruptoy § 350.03[1] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2008). As one of our bankruptcy courts has observed: It is not serendipitous that the Bankruptcy Code has an explicit provision that prevents the loss of assets that a debtor fails to disclose in [bankruptcy [schedules. It happens all the time, especially with claims. And when it does, cases are routinely reopened, in accordance with the statute, to administer those assets. In re Miller, 347 B.R. 48, 53 (Bankr.S.D.Tex.2006) (citations omitted). Section 541 of the Bankruptcy Code provides that virtually all of a debt- or’s assets, including causes of action belonging to the debtor at the commencement of the bankruptcy case, vest in the bankruptcy estate upon the filing of a bankruptcy petition. 11 U.S.C. § 541(a)(1); In re Swift, 129 F.3d at 795; 5 Collier ON Bankruptcy § 541.08. Thus, a trustee, as the representative of the bankruptcy estate, is the real party in interest, and is the only party with standing to prosecute causes of action belonging to the estate once the bankruptcy petition has been filed. 11 U.S.C. §§ 323, 541(a)(1); Wieburg, 272 F.3d at 306. “Once an asset becomes part of the bankruptcy estate, all rights held by the debtor in the asset are extinguished unless the asset is abandoned” by the trustee to the debtor pursuant to § 554. Parker v. Wendy’s Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004); see 11 U.S.C. § 554; 5 Collier on Bankruptcy §§ 541.04, 541.08. In a Chapter 7 case, “[a]t the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings” — including property that was never scheduled — “remains the property of the" }, { "docid": "8105880", "title": "", "text": "claims. Rare Coin Galleries, 862 F.2d at 901. Thus, each of Graupner’s claims that had accrued as of June 7, 2000 — the date of his petition' — passed to the bankruptcy estate on that date. The debtor is responsible for disclosing all assets to the bankruptcy court, including all contingent claims. 11 U.S.C. § 521(a)(1); see, e.g., In re Tennyson, 313 B.R. 402, 406 (Bankr.W.D.Ky.2004) (noting that a purpose of scheduling assets is to enable the trustee to evaluate their worth to determine whether the claims should be pursued by the estate). Under 11 U.S.C. § 554(c), any property that is scheduled but not otherwise administered at the time of the closing of a case is abandoned to the debtor; however, property of the estate that is not scheduled in the case, and therefore not abandoned, remains property of the estate. “[A]ny asset not properly scheduled remains property of the bankrupt estate, and the debtor loses all rights to enforce it in his own name.” Jeffrey v. Desmond, 70 F.3d 183, 186 n. 3 (1st Cir.1995) (citing Vreugdenhill v. Navistar Int’l Trans. Corp., 950 F.2d 524, 526 (8th Cir.1991)). It is undisputed that Graupner did not list any of his claims arising prior to June 7, 2000, on the schedule during the original bankruptcy proceeding; that is, he did not list either his MLRC claim or his civil rights claims, which were based essentially on the same events. He was clearly required to list both. Because the trustee was never made aware of those claims, they could not have been abandoned upon the closing of Graupner’s case in September 2000. The claims therefore remained the property of the estate. See Jeffrey, 70 F.3d at 186; Wieburg v. GTE Southwest Inc., 272 F.3d 302, 306 (5th Cir.2001). Graupner argues, however, that he made a proper disclosure to the bankruptcy court in 2005, when he amended his schedule and disclosed the existence of a “civil action for money damages.” He contends that when the case was again closed, the claims were abandoned and are therefore no longer property of the bankruptcy" }, { "docid": "8105896", "title": "", "text": "MLRC) and the civil rights claims (which were eventually brought in this Court) easily fit that description. It is true that the relief requested before the MLRC may have been a traditionally equitable form of relief (back pay) rather than a traditionally legal form of relief (compensatory damages). Nevertheless, the cause of action before the MLRC is clearly a “legal or equitable interest of the debtor in property” where the back pay sought was for a period of pre-petition time — November 30, 1999, until June 7, 2000. See 11 U.S.C. § 541(a)(1); see generally 5 Collier at § 541.08 (\"causes of action belonging to the debtor at the time the case is commenced” included in bankruptcy estate). Therefore, it would be an asset available to the bankruptcy estate from which his debts could have been potentially satisfied. . Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir.2003) is distinguishable. There, the plaintiff reopened her bankruptcy to disclose her pre-petition employment discrimination claims in an apparent effort to resolve the standing issue. However, the bankruptcy case remained open and abandonment under 11 U.S.C. § 554(c) — by operation of law upon closing of the case — was not at issue. See id. at 1292. . It is unclear from the record what precise portion of the back pay award accrued prior to the filing of the petition. . As noted, Graupner apparently has never collected his back pay award pursuant to his MLRC claim. His ability to collect and retain on his own behalf all or part of that award is not before the Court. Nonetheless, it would appear that any portion of the MLRC award that accrued prior to the date of the petition is likewise the property of the bankruptcy estate. . While it may not be strictly necessary to the application of judicial estoppel, the Court notes that Graupner’s inconsistent positions clearly afforded him an advantage: a disclosure in bankruptcy court would have presented the possibility that any payment by defendants (either in settlement or by judgment) would have been used to satisfy his debts. By" }, { "docid": "19964832", "title": "", "text": "the filing of a bankruptcy petition. 11 U.S.C. § 541(a)(1); In re Swift, 129 F.3d at 795; 5 Collier ON Bankruptcy § 541.08. Thus, a trustee, as the representative of the bankruptcy estate, is the real party in interest, and is the only party with standing to prosecute causes of action belonging to the estate once the bankruptcy petition has been filed. 11 U.S.C. §§ 323, 541(a)(1); Wieburg, 272 F.3d at 306. “Once an asset becomes part of the bankruptcy estate, all rights held by the debtor in the asset are extinguished unless the asset is abandoned” by the trustee to the debtor pursuant to § 554. Parker v. Wendy’s Int'l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004); see 11 U.S.C. § 554; 5 Collier on Bankruptcy §§ 541.04, 541.08. In a Chapter 7 case, “[a]t the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings” — including property that was never scheduled — “remains the property of the estate.” Parker, 365 F.3d at 1272; 11 U.S.C. § 554(d); 5 Collier ON BANKRUPTCY § 541.08. But, “upon abandonment ... the trustee is ... divested of control of the property because it is no longer part of the estate- Property abandoned under [§] 554 reverts to the debtor, and the debtor’s rights to the property are treated as if no bankruptcy petition was filed.” 5 Collier on Bankruptcy § 554.02[3]; 11 U.S.C. § 554; see In re Lair, 235 B.R. 1, 22 (Bankr.M.D.La.1999). “Judicial estoppel is a common law doctrine that prevents a party from assuming inconsistent positions in litigation.” In re Superior Crewboats, Inc., 374 F.3d at 334 (citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988)). “ ‘The purpose of the doctrine is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts to suit the exigencies of self interest.’ ” Id. (quoting In re Coastal Plains, Inc., 179 F.3d at 205). As an equitable doctrine, “[generally, judicial estoppel is invoked where" }, { "docid": "8105877", "title": "", "text": "in 2005; or that he had been offered more than $86,000 in settlement, but had demanded a much higher amount. Nor did he differentiate between his MLRC claim for retaliation under state law (already finally decided in his favor) and his claims for civil rights violations (then, as now, pending in this Court). Finally, his description was misleading, in that it states that he originally sought only “reinstatement” at the MLRC and that “money damages were not requested,” when in fact he also sought “restoration of all benefits lost” — that is, back pay- No new trustee was appointed. The bankruptcy court provided notice of the amendment to the creditors, but no creditors filed any objections or claims against the newly disclosed property. The case was then closed on November 29, 2005. In the meantime, on October 5, 2005, defendants filed for summary judgment as to all claims brought by Graupner on grounds of lack of standing and judicial estoppel, based on his failure to make proper disclosure to the bankruptcy court in 2000. His affidavit in opposition to the motion, filed on January 19, 2006, stated that he only sought “reinstatement and back pay” from the MLRC, and implied that he did not disclose the MLRC claim to the bankruptcy court because he did not know he had an obligation to do so. He further stated that counsel for his MLRC claim was provided by MASSCOP, and that, shortly after the MLRC’s decision in his favor, counsel informed him that she “could only take [him] as far as reinstatement ... [and that he] needed to hire private counsel to pursue any other issues, including back pay and settlement in lieu of reinstatement, and any possible civil rights claims.” He stated that he “did not contemplate or consider civil rights claims until informed of those possible rights at that time.” II. Analysis Defendants seek summary judgment on two grounds: (1) because Graupner failed to schedule his civil rights claims as assets in the bankruptcy court, the claims belong to the bankruptcy estate, and he does not have standing to assert" }, { "docid": "8105878", "title": "", "text": "affidavit in opposition to the motion, filed on January 19, 2006, stated that he only sought “reinstatement and back pay” from the MLRC, and implied that he did not disclose the MLRC claim to the bankruptcy court because he did not know he had an obligation to do so. He further stated that counsel for his MLRC claim was provided by MASSCOP, and that, shortly after the MLRC’s decision in his favor, counsel informed him that she “could only take [him] as far as reinstatement ... [and that he] needed to hire private counsel to pursue any other issues, including back pay and settlement in lieu of reinstatement, and any possible civil rights claims.” He stated that he “did not contemplate or consider civil rights claims until informed of those possible rights at that time.” II. Analysis Defendants seek summary judgment on two grounds: (1) because Graupner failed to schedule his civil rights claims as assets in the bankruptcy court, the claims belong to the bankruptcy estate, and he does not have standing to assert them on his own behalf; and (2) in any event, Graupner is precluded from asserting them by the doctrine of judicial estoppel. The Court will address each in turn. A. Standing Defendants first argue that Graupner’s civil rights claims passed to the bankruptcy estate when he filed for bankruptcy on June 7, 2000; that the claims were not disclosed to the bankruptcy court, and therefore never abandoned by that court; that they remain the property of the estate; and that therefore Graupner is without standing to assert the claims in this Court. As a general rule, a debtor’s claims that have accrued as of the date the bankruptcy case commences become property of the bankruptcy estate. 11 U.S.C. § 541(a)(1) (estate includes “all legal or equitable interests of the debtor in property”); In re Rare Coin Galleries of America, 862 F.2d 896, 900-901 (1 st Cir.1988); see generally 5 Collier on Bankruptcy §§ 541.02, 541.08 (15th ed. rev.2005). The “trustee steps into the shoes of the debtor for the purposes of asserting or maintaining” such" }, { "docid": "8105879", "title": "", "text": "them on his own behalf; and (2) in any event, Graupner is precluded from asserting them by the doctrine of judicial estoppel. The Court will address each in turn. A. Standing Defendants first argue that Graupner’s civil rights claims passed to the bankruptcy estate when he filed for bankruptcy on June 7, 2000; that the claims were not disclosed to the bankruptcy court, and therefore never abandoned by that court; that they remain the property of the estate; and that therefore Graupner is without standing to assert the claims in this Court. As a general rule, a debtor’s claims that have accrued as of the date the bankruptcy case commences become property of the bankruptcy estate. 11 U.S.C. § 541(a)(1) (estate includes “all legal or equitable interests of the debtor in property”); In re Rare Coin Galleries of America, 862 F.2d 896, 900-901 (1 st Cir.1988); see generally 5 Collier on Bankruptcy §§ 541.02, 541.08 (15th ed. rev.2005). The “trustee steps into the shoes of the debtor for the purposes of asserting or maintaining” such claims. Rare Coin Galleries, 862 F.2d at 901. Thus, each of Graupner’s claims that had accrued as of June 7, 2000 — the date of his petition' — passed to the bankruptcy estate on that date. The debtor is responsible for disclosing all assets to the bankruptcy court, including all contingent claims. 11 U.S.C. § 521(a)(1); see, e.g., In re Tennyson, 313 B.R. 402, 406 (Bankr.W.D.Ky.2004) (noting that a purpose of scheduling assets is to enable the trustee to evaluate their worth to determine whether the claims should be pursued by the estate). Under 11 U.S.C. § 554(c), any property that is scheduled but not otherwise administered at the time of the closing of a case is abandoned to the debtor; however, property of the estate that is not scheduled in the case, and therefore not abandoned, remains property of the estate. “[A]ny asset not properly scheduled remains property of the bankrupt estate, and the debtor loses all rights to enforce it in his own name.” Jeffrey v. Desmond, 70 F.3d 183, 186 n. 3" }, { "docid": "18769248", "title": "", "text": "In re Bulson, 117 B.R. 537, 541 (9th Cir. BAP 1990), aff'd, 974 F.2d 1341 (9th Cir.1992). Here, the IRS’ claim arose out of the debtor’s failure to pay pre-petition taxes. The debtor’s claim arises from both the IRS’ attempt to assess taxes during the bankruptcy and its attempt to collect taxes by offset post-petition. The assessment made during the pending bankruptcy was an assessment made against the debtor and it would have been up to the debtor, not Fingers individually, to challenge the improper assessment. Similarly, the debt- or has a claim against the IRS for its post-petition action in applying a portion of the debtor’s tax overpayments against the 1981 and 1982 tax liabilities. The court, therefore, concludes that the IRS has waived its sovereign immunity under Section 106(a) entitling Fingers to an award of his actually incurred reasonable attorneys’ fees. In re Fingers, 148 B.R. at 591. The United States argues that the estate has neither a claim against the governmental unit and, even if the estate does have a claim against the governmental unit, the estate’s claim is not property of the estate. However, such an argument is premised on a very narrow reading of 11 U.S.C. § 541(a)(1) which has been uniformly rejected by courts. As the bankruptcy court correctly noted, Fingers’ claim arises from both the IRS’ attempt to assess taxes and its attempt to collect taxes by offset post-petition. Thus, the estate expended attorneys’ fees in defending against improper assessment and improper post-petition offset, thereby preserving bankruptcy estate assets. Consequently, any attorneys’ fees incurred in pursuing the sanctions action are considered an equitable interest of the debtor and property as of the commencement of the ease since they, if paid from the estate, would diminish assets otherwise available to the debtor at the commencement of the case to satisfy other debts. Therefore, in non-chapter 13 cases, courts have construed 11 U.S.C. § 541 to relate all such damages back to the case’s commencement. See, e.g., In re University Medical Center, 973 F.2d 1065, 1086 (3d Cir.1992); In re Boldman, 148 B.R. 874, 876" }, { "docid": "8105876", "title": "", "text": "his amended Schedule B, under the section requesting disclosure of “contingent and unliquidated claims of every nature” and the “estimated value of each,” he stated as follows: Civil action for money damages: the debtor estimates the value as unknown: The claims [sic] originates from 1999 and was a claim filed with the Massachusetts Labor Relations Board [sic] regarding the debtor husband’s claim for reinstatement as a police Sergeant with the Town of Brookfield and money damages were not requested: due to the passage of time, the debtor’s claim for employment reinstatement has become impractical and now the debtor husband can only recover money damages. At the time of the filing of the bankruptcy case the debtor husband did not list this asset due [to] inadvertence and his belief that it was not an asset but a claim for job reinstatement. Graupner thus did not advise the bankruptcy court that his claim with the MLRC had resulted in a May 2002 order in his favor that included back pay; that it had been upheld on appeal in 2005; or that he had been offered more than $86,000 in settlement, but had demanded a much higher amount. Nor did he differentiate between his MLRC claim for retaliation under state law (already finally decided in his favor) and his claims for civil rights violations (then, as now, pending in this Court). Finally, his description was misleading, in that it states that he originally sought only “reinstatement” at the MLRC and that “money damages were not requested,” when in fact he also sought “restoration of all benefits lost” — that is, back pay- No new trustee was appointed. The bankruptcy court provided notice of the amendment to the creditors, but no creditors filed any objections or claims against the newly disclosed property. The case was then closed on November 29, 2005. In the meantime, on October 5, 2005, defendants filed for summary judgment as to all claims brought by Graupner on grounds of lack of standing and judicial estoppel, based on his failure to make proper disclosure to the bankruptcy court in 2000. His" }, { "docid": "8105894", "title": "", "text": "his‘ bankruptcy, for the appointment of a trustee, or otherwise to seek appropriate relief; (c) This litigation shall be stayed in its entirety for 60 days; (d) The matter will be set for a status conference on October 17, 2006 at 3:30 p.m.; and (e) The motion of Defendants for Summary Judgment as to R. Peter Graupner (Docket No. 41) is DENIED without prejudice to its renewal at a subsequent time. So Ordered. . Around the time of the meeting, Selectman Dackson allegedly told Graupner, \"It wasn't smart to start a union so close to your appointment. Unions are trouble ... you are trouble ... and you won’t be around to enjoy the union.” . Graupner also alleges that during the period between November 15, 1999 and March 2000, various defendant officers (1) interrupted a talk he was giving to the Girl Scouts and illegally detained and humiliated him; (2) served a grand jury subpoena demanding his payroll records from an employer where he worked at a second job; and (3) in a telephone conversation with his new employer, referred to him as a \"thief” and \"criminal” and recommended that his employment be terminated. . The Town contends that the award for back pay was \"sufficient to satisfy his debts” in bankruptcy. There is no record evidence to verify this contention. . For the sake of simplicity, Graupner’s claims in this Court will be referred to as his \"civil rights claims,” as distinct from his claims before the MLRC for reinstatement and back pay. . Defendants did not distinguish in their motion between Graupner's claims that accrued prior to the bankruptcy petition (on June 7, 2000) and those accruing thereafter (e.g., the claims based on the October 21, 2000 detention and subsequent prosecution). . This section, formerly § 521(1), has been renumbered as § 521(a)(1) by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, § 106(c)(1), Pub.L. No. 109-8, 119 Stat. 23 (2005). . The schedule called for disclosure of \"contingent and unliquidated claims of every nature.” Both the statutory retaliation claim (which was then pending before the" }, { "docid": "8105897", "title": "", "text": "bankruptcy case remained open and abandonment under 11 U.S.C. § 554(c) — by operation of law upon closing of the case — was not at issue. See id. at 1292. . It is unclear from the record what precise portion of the back pay award accrued prior to the filing of the petition. . As noted, Graupner apparently has never collected his back pay award pursuant to his MLRC claim. His ability to collect and retain on his own behalf all or part of that award is not before the Court. Nonetheless, it would appear that any portion of the MLRC award that accrued prior to the date of the petition is likewise the property of the bankruptcy estate. . While it may not be strictly necessary to the application of judicial estoppel, the Court notes that Graupner’s inconsistent positions clearly afforded him an advantage: a disclosure in bankruptcy court would have presented the possibility that any payment by defendants (either in settlement or by judgment) would have been used to satisfy his debts. By not disclosing the asset, any such payment would be to his sole benefit. See Patriot Cinemas, 834 F.2d at 212 (noting advantage to litigant of non-disclosure). . The Court notes that an inference of intentional manipulation of the legal process was required in Barger, but that, under Alternative System Concepts, no such intent is apparently required in this Circuit. In any event, deliberate manipulation in Barger could be inferred where \"the debtor has knowledge of the undisclosed claims and has motive for concealment.” Barger, 348 F.3d at 1294." }, { "docid": "21630774", "title": "", "text": "that applying judicial estoppel to him would not serve the policy of encouraging honest disclosure to the courts because Reynolds was never dishonest with the courts. The correct analysis here compels the conclusion that judicial estoppel should not be applied at all. Moreover, based on our analysis which follows, it is questionable as to whether judicial estoppel was correctly applied in Bumes. The more appropriate defense in the Bumes case was, instead, that the debtor lacked standing. Generally speaking, a pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it. Barger v. City of Cartersville, 348 F.3d 1289, 1292 (11th Cir.2003). Section 541 of the Bankruptcy Code provides that virtually all of a debtor’s assets, both tangible and intangible, vest in the bankruptcy estate upon the filing of a bankruptcy petition. 11 U.S.C. § 541(a)(1) (providing that the bankruptcy estate includes “all legal or equitable interest of the debtor in property as of the commencement of the case”). Such property includes causes of action belonging to the debtor at the commencement of the bankruptcy case. Barger, 348 F.3d at 1292. Thus, a trustee, as the representative of the bankruptcy estate, is the proper party in interest, and is the only party with standing to prosecute causes of action belonging to the estate. 11 U.S.C. § 323; Barger, 348 F.3d at 1292. Once an asset becomes part of the bankruptcy estate, all rights held by the debtor in the asset are extinguished unless the asset is abandoned back to the debtor pursuant to § 554 of the Bankruptcy Code. See 11 U.S.C. § 554(a)-(c). At the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings remains the property of the estate. 11 U.S.C. § 554(d). Failure to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate. Mobility Systems & Equip. Co. v. United States, 51 Fed.Cl. 233, 236 (Fed.Cl.2001) (citing cases); see Vreugdenhill v. Navistar Int’l" } ]

[ { "docid": "13087652", "title": "", "text": "PER CURIAM. This is an appeal from a judgment entered upon a directed verdict for appel-lee in the district court in appellant’s suit for personal injuries brought under the Federal Employers’ Liability Act, 45 U. S.C.A. § 51 et seq. The appellant was injured when he stumbled over a rail and fell while crossing the appellee’s tracks in the course of his employment. He contends it was error not to submit to the jury the question of whether appellee failed to use reasonable care to provide a reasonably safe place to work, by permitting a one-quarter to one-half inch flange-like protrusion on the section of rail where he fell. We recognize that the authority of courts by direction of a verdict to withdraw from the consideration of a jury the question of defendant’s negligence in a Federal Employers’ Liability Act case “is now very restricted indeed.” Keith v. Wheeling & L. E. Ry. Co., 6 Cir., 1947, 160 F.2d 654, 658. Nevertheless, negligence remains the sole basis of liability under that statute. Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. We think the district court was not in error in directing a verdict for appellee upon the evidence in this case. There was “a complete absence of probative facts to support the conclusion” of negligence. Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. The judgment of the district court is therefore affirmed." } ]

[ { "docid": "21690117", "title": "", "text": "negligence against Inland Tugs. Springborn moved for both a directed ver diet and j.n.o.v. challenging the jury’s finding of no negligence. The standard of liability under the Jones Act is the same as under the FELA. Ferguson v. Moore-McCormick Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 1 L.Ed.2d 511, 514, 1957 A.M.C. 647, 650 (1957). The standard of review for directed verdicts and j.rno.v. motions in FELA cases was set forth by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, 923 (1946). Under Lavender, a directed verdict for the defendant is proper “only when there is a complete absence of probative facts.” Thus, the test of a plaintiff’s case — one which will survive a defendant’s motion for a directed verdict and go to the jury under the FELA — is “simply whether the fruits justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499 (1957). In Boeing v. Shipman, 411 F.2d 365, 370 (5th Cir.1969) (en banc), we determined that the “reasonable man” standard was appropriate for cases other than FELA and Jones Act cases. Boeing specifically recognized that the Jones Act featherweight standard was designed to make it easier for the seaman to prove liability than in the usual negligence cases. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 331, 1977 A.M.C. 1090, 1111 (5th Cir.1977). Thus, under the Jones Act Lavender standard, a directed verdict for the defendant is possible only when there is a complete absence of probative facts supporting the nonmovant’s position. While we have applied the Lavender standard without question on a defendant-employer’s motion for a directed verdict or j.n.o.v., we have been skeptical about its application to a jury verdict in favor of the defendant employer when the plaintiff seaman challenges it by requesting a j.n.o.v. We now discuss our prior cases which have wrestled with, but not" }, { "docid": "1714783", "title": "", "text": "was also testimony of the second mate who used the machine in June 1967 without observing any defects in the saw, and testimony of a carpentry expert that a blade guard would be unnecessary in a grooving operation. Defendant contends on this appeal that the evidence established that the accident was solely the result of plaintiff’s negligence because he knew of the lack of a guard on the blade, and that the district court erred in allowing the jury to pass on whether the lack of a blade guard was the proximate cause of plaintiff’s injuries. We affirm the denial of defendant’s motions for a directed verdict and for judgment notwithstanding the verdict. The standard for determining whether plaintiff has presented sufficient evidence to raise a jury question as to defendant’s negligence is whether, viewing the evidence in the record in the light most favorable to plaintiff, “there is a complete absence of probative facts to support the conclusion reached” by the jury. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). See Ferguson v. MooreMcCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957) which adopted for Jones Act cases the standard established in Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) for F.E.L.A. cases. The same test applies in determining the sufficiency of the evidence as to a plaintiff-seaman’s contributory negligence. McBride v. Loffland Bros. Co., 422 F.2d 363 (5th Cir. 1970). Applying these standards we find that in the present case there was sufficient evidence to support the jury’s conclusion that defendant was negligent and that plaintiff was less than 100% contributorily negligent. There was testimony that the tabletop moved under plaintiff’s weight when it had never so moved previously, that the inspections of the saw were infrequent and cursory, that plaintiff had requested that the saw be repaired, and that there was no blade guard. Defendant’s proof flatly contradicted plaintiff’s assertions that he had requested repairs and that the tabletop moved, thus raising issues of credibility for the jury" }, { "docid": "17269406", "title": "", "text": "there, how long it had been there, or that there had been time enough for the shipowner, in the exercise of due care, to have learned of it and corrected the situation. “Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability”, Cox v. Esso Shipping Company, 5 Cir., 1957, 247 F.2d 629, 637. In FELA cases the standard for determining whether the plaintiff’s evidence is sufficient to go to the jury is whether, viewing the evidence in the light most favorable to the plaintiff, “there is a complete absence of probative facts to support the conclusion reached”, Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957), applying the FELA standard of Rogers v. Missouri Pacific Railraod, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), to Jones Act cases. Policy considerations have led to the adoption of a somewhat paternalistic attitude toward seamen, with a correlative lowering of the quantum of evidence required to support a jury verdict for such a plaintiff than is required for common law actions for negligence, Spinks v. Chevron Oil Company, 5 Cir., 1975, 507 F.2d 216, 223; Sanford Brothers Boats, Inc. v. Vidrine, 5 Cir., 1969, 412 F.2d 958, 962-965. That only the slightest negligence need be shown to uphold the award of damages in such cases does not mean, however, that the seaman may prevail on no evidence at all. As in Rice v. Atlantic Gulf & Pacific Company, 2 Cir., 1973, 484 F.2d 1318, a case very similar to this one Perry adduced no evidence that in the exercise of reasonable care the shipowner had either the time or the opportunity to acquire knowledge of, or to correct, the dangerous condition, assuming, as testified by Perry, that it existed. The motion of the defendant for a directed verdict should have been" }, { "docid": "12871314", "title": "", "text": "verdict. Lavender v. Kurn, 327 U.S. 645, 652-53, 66 S.Ct. 740, 743, 90 L.Ed.2d 916, 922 (1946) (construing standard for FELA cases, applicable to Jones Act cases, Ferguson v. Moore-McCormick Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957)); Kendrick v. Illinois Central Gulf Railroad Co., 669 F.2d 341, 343 n. 1 (5th Cir.1982); Comeaux v. T.L. James & Co., 666 F.2d at 298 n. 3; Allen v. Seacoast Products, Inc., 623 F.2d 355, 3359-60 (5th Cir.1980). Similarly, we have applied the same standards of proof, causation, and review to the issue of the plaintiff’s contributory negligence. See Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 n. 2 (5th Cir.1978) (applying Lavender standard of review to Jones Act case whether jury verdict favors plaintiff or defendant); McBride v. Loffland Brothers Co., 422 F.2d 363, 365 (5th Cir.1970) (applying Lavender test to sufficiency of evidence of contributory negligence); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 822-24 (5th Cnv 1965) (FELA case applying single standard of proximate causation to employer and employee negligence). The standard required to prove causation as a result of the vessel’s unseaworthiness is more demanding than that for recovery under the Jones Act, and requires proof of proximate causation in the traditional sense. Likewise, the proof of plaintiff’s negligence is more difficult. So too the test for review of the sufficiency of evidence of proximate cause in an unseaworthiness claim utilizes the Boeing standard, not the FELA/Jones Act “complete absence” test. While we are aware that certain practical problems may arise from the distinction between a claim of unseaworthiness and a claim of Jones Act negligence when tried together, these difficulties are inherent in the nature of the claims, for, as we have shown, each involves a separate standard of proof, causation, and review. The distinction between the claims is understandable when one considers that the bases for liability differ, as do the origins of the two causes, one being of legislative origin (Jones Act) and the other being of judicial creation (unseaworthiness and the general maritime law)." }, { "docid": "14866630", "title": "", "text": "narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.” 352 U.S. at pages 506-507, 77 S.Ct. at page 448. The repeated use of the phrase “with reason” — it appears three times in this short paragraph — is a persuasive indication that the court intended no departure from the familiar and normal requirement of our jurisprudence, as repeatedly stated in its own rather recent decisions, that the party with the burden of proof must “present probative facts from which the negligence and the causal relation could reasonably be inferred.” See Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520; Myers v. Reading Co., 1947, 331 U.S. 477, 485, 67 S.Ct. 1334, 91 L.Ed. 1615; and compare the rationalization in Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916. It is also to be considered whether the more recent per curiam decisions in McBride v. Toledo Terminal Rd. Co., 1957, 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534 and Stinson v. Atlantic Coast Line R. Co., 78 S.Ct. 136, lend significant support to appellant’s view of the Supreme Court’s present position. Both of these per curiam opinions cite Rogers v. Missouri Pac. R. Co., supra, telling us no more than that, applying the Rogers rationale, the Court has found jury questions in these latest cases. They suggest no doctrinal departure from the Rogers case, upon which we already have commented. Accordingly, we hold that the absence of evidence, either circumstantial or direct, tending to show that negligence of the defendant had any influence or effect in causing plaintiff’s injury, justified the entry of judgment notwithstanding the verdict in this case. It is not necessary to consider the trial court’s alterna tive position that even if judgment non obstante were legally incorrect, a new trial should be ordered. The judgment will be affirmed. . 45 U.S.C.A. § 51 et seq." }, { "docid": "23518340", "title": "", "text": "916 (1946); Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 32-35, 64 S.Ct. 409, 411-413, 88 L.Ed. 520 (1944). Compare Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980) (Jones Act) (“a directed verdict is possible ‘only when there is a complete absence of probative facts’ supporting the nonmovant’s position.”); Fritts v. Toledo Terminal Railroad Co., 293 F.2d 361, 362 (6th Cir.1961) (“the question for this court is whether there was a complete lack of probative facts”). This court has held that: the contentions of the parties and inconsistencies in the proof are not for the trial judge to resolve but for the jury under proper instructions. [However,] [i]t is still the function of the trial judge within narrowly prescribed limits of the statutes herein to pass upon the sufficiency of the evidence____ Fritts, 293 F.2d at 363. For while “disbelief ... [in] testimony would not supply a want of proof,” Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 576, 71 S.Ct. 428, 430, 95 L.Ed. 547 (1951), “[speculation cannot supply the place of proof,” id. at 578, 71 S.Ct. at 430. As in considering all motions for directed verdict, the evidence is viewed in the light most favorable to the nonmovant. Mendoza, 733 F.2d at 633; Lambert v. Morania Oil Tanker Corp., 677 F.2d 245, 247 (2d Cir.1982) (Jones Act); Cullinan v. Burlington Northern, Inc., 522 F.2d 1034, 1036 (9th Cir.1975); Rodriguez v. Delray Connecting Railroad, 473 F.2d 819, 820 (6th Cir.1973). Case law makes clear, however, that although the power to grant directed verdicts is restricted in FELA actions, directed verdicts are frequently proper in particular cases. Inman v. Baltimore & Ohio Railroad Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Euresti v. Washington Terminal Co., 280 F.2d 629, 630 (D.C.Cir.1960); Perkoski, 217 F.2d 642. We conclude that this is one such case. A. 45 U.S.C. § 51 provides in pertinent part: Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or" }, { "docid": "9364394", "title": "", "text": "standard applied in common law negligence actions. As stated by the United States Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” See Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S. Ct. 443,1 L.Ed.2d 493 (1957); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037 (10th Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Chicago R.I. & P.R.R. v. Melcher, 333 F.2d 996 (8th Cir. 1964); Prosser, Torts § 80, p. 536 (4th ed. 1971). To this standard, however, must be added the admonition found in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944): “The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked,” See Missouri-Kansas-Texas Ry. v. Hearson, supra, 422 F.2d at 1041. As already noted, appellee alleged that the Railroad violated § 2 of the Safety Appliance Act, 45 U.S.C. § 2, in that the coupler of the piggyback car was misaligned to such an extent as to preclude coupling automatically by impact. Section 2 reads: It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. There is no dispute but that all of the Railroad’s cars are equipped with “automatic couplers” in the sense that the cars can ordinarily be coupled together without men going between the ends of the cars. The coupling apparatus, however, permits limited movement of the drawbar from side to side in order to allow the cars, when coupled together, to pass around curves without derailment and to allow coupling on a curve." }, { "docid": "5744651", "title": "", "text": "their answers. We assume, without deciding, that this sort of inconsistency is properly challengeable. While Alverez’ argument that a finding of no proximate cause is inconsistent with a finding of 90% contributory negligence has superficial appeal, we find that the jury’s answers, when viewed in the context of the charge given by the District Court, represent a logical decision. R. B. Company, 299 F.2d at 758. The District Court made clear to the jury, in both the construct of the interrogatories and the general charge, that there were two separate theories of liability, Jones Act and unseaworthiness, with two different standards of proof of causation. The “producing cause” standard, that used for Jones Act negligence, is the FELA lax standard, incorporating any cause regardless of its immediacy. Plaintiffs burden of proving cause is “featherweight,” Davis v. Hill Engineering, Inc., 549 F.2d 314, 331 (5th Cir. 1977), and all that is required is a showing of “slight negligence,” Alien v. Seacoast Products, Inc., 623 F.2d 355, 361 (5th Cir. 1980). In keeping with this less demanding standard of proof and causation, the test for sufficiency of evidence in a Jones Act case also requires less evidence to support a finding, and directed verdicts and j. n. o. v. motions are granted “only when there is a complete absence of probative facts” to support a verdict. Lavender v. Kurn, 327 U.S. 645, 652-53, 66 S.Ct. 740, 743, 90 L.Ed. 916, 922 (1946) (construing standard for FELA— Jones Act cases, Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957)); Kendrick v. Illinois Central Gulf Railroad Co., 669 F.2d 341, 343 n.1 (1982); Comeaux v. T. L. James & Co., 666 F.2d 294, 298 n.3 (5th Cir. 1982); Allen v. Seacoast Products, Inc., 623 F.2d 355, 359-60 (5th Cir. 1980). Like wise, we have applied the same PELA standards of proof, causation, and review of a plaintiff’s negligence to that of contributory negligence. See Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 n.2 (5th Cir. 1978) (applying Lavender standard of review to Jones Act" }, { "docid": "17269405", "title": "", "text": "any slip marks in it [App. 220]. He stated that the grease he saw was above the heavy deposit on the steps where the bucket burst [App. 207-208]. Perry testified that he did not know what had caused him to slip until he came back up and saw “gray-looking grease” [App. 265] on the fifth or sixth step, with his footprint in it [App. 271], Perry says that in allowing such a dangerous condition to exist Hendy breached its duty of due care. Under familiar principles of negligence, in Jones Act cases, there must be some evidence from which a jury can infer that the unsafe condition existed and that the owner either knew or, in the exercise of due care, should have known of it. Neither Perry nor’ Cerniglia saw grease on the stairs before they went to supper. They saw none when they returned. Yet, Perry testified that he slipped on such grease on his first trip downstairs. Assuming that he did, there is absolutely no evidence to show how the grease got there, how long it had been there, or that there had been time enough for the shipowner, in the exercise of due care, to have learned of it and corrected the situation. “Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability”, Cox v. Esso Shipping Company, 5 Cir., 1957, 247 F.2d 629, 637. In FELA cases the standard for determining whether the plaintiff’s evidence is sufficient to go to the jury is whether, viewing the evidence in the light most favorable to the plaintiff, “there is a complete absence of probative facts to support the conclusion reached”, Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957), applying the FELA standard of Rogers v. Missouri Pacific Railraod, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493" }, { "docid": "17542867", "title": "", "text": "Pennsylvania R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508. In that situation the judgment of the district court should be affirmed. The second branch of this case concerns the allowance of a contingent new trial by the district court. Under the present facts such action was within the fair discretion of the trial judge. . Of course, it is also inferable that even had the car been up on benches the injury might nonetheless have occurred. . Moore v. Terminal R. Association of St. Louis, 1958, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25; Ferguson v. St. Louis-San Francisco Ry. Co., 1958, 356 U.S. 41, 78 S.Ct. 671, 2 L.Ed.2d 571; Honeycutt v. Wabash Ry. Co., 1958, 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380; Stinson v. Atlantic Coast Line R. Co., 1957, 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93; Gibson v. Thompson, 1957, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1; McBride v. Toledo Terminal R. Co., 1957, 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534; Ringhiser v. Chesapeake & Ohio Ry. Co., 1057, 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; Arnold v. Panhandle & Santa Fe Ry. Co., 1957, 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed. 2d 889; Thomson v. Texas & Pacific Ry. Co., 1957, 353 U.S. 926, 77 S.Ct. 698, 1 L.Ed.2d 722; Deen v. Gulf, Colorado & Santa Fe Ry. Co., 1957, 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721; Futrelle v. Atlantic Coast Line R. Co., 1957, 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718; Shaw v. Atlantic Coast Line R. Co., 1957, 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718; Herdman v. Pennsylvania R. Co., 1957, 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508; Webb v. Illinois Central R. Co., 1957, 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed. 503. . Wergin v. Monessen Southwestern Ry. Co., 3 Cir., 1958, 258 F.2d 806; Dessi v. Pennsylvania R. Co., 3 Cir., 1958, 251 F.2d 149; Compare Gibson v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 1957," }, { "docid": "21690116", "title": "", "text": "the lack of a full complement in the crew may render a vessel unseaworthy, see, e.g., Comeaux v. T.L. James & Co., Inc., 666 F.2d 294, 299 (5th Cir.1982), supplemented, 702 F.2d 1023 (5th Cir.1983), there was ample evidence to support the verdict. Springborn was required to prove that his injury was causally connected to the condition of the vessel which rendered it unseaworthy. See Caldwell, 618 F.2d at 363. Captain Croomes, the relief Captain, testified that three men were not needed to work on the shift the morning that Springborn fell. Captain Shell similarly testified that only two men were needed on the shift. Simply stated, the trial court’s denial of Spring-born’s motion for j.n.o.v. was entirely proper based upon the evidence presented. As to Springborn’s motion for new trial on the unseaworthiness of the tug, we also think that the district court’s denial was not an abuse of discretion. The Jones Act Springborn urges that the same facts which establish the unseaworthiness of the tug and barge compel a finding of Jones Act negligence against Inland Tugs. Springborn moved for both a directed ver diet and j.n.o.v. challenging the jury’s finding of no negligence. The standard of liability under the Jones Act is the same as under the FELA. Ferguson v. Moore-McCormick Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 1 L.Ed.2d 511, 514, 1957 A.M.C. 647, 650 (1957). The standard of review for directed verdicts and j.rno.v. motions in FELA cases was set forth by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, 923 (1946). Under Lavender, a directed verdict for the defendant is proper “only when there is a complete absence of probative facts.” Thus, the test of a plaintiff’s case — one which will survive a defendant’s motion for a directed verdict and go to the jury under the FELA — is “simply whether the fruits justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific" }, { "docid": "13195429", "title": "", "text": "the reasonableness of the verdict returned by the jury. Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. The Merchant Marine Act, 1920, 46 U.S.C.A. § 688, under which the plaintiff brought this action, states that: “ * * * au statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. * * * ” Thus, the above cited cases set the standards we are to apply in determining the sufficiency of the evidence to support the jury verdict. Reck v. Pacific-Atlantic S. S. Co., 2 Cir., 1950, 180 F.2d 866. With respect to such standards, the court stated in Lavender v. Kurn, supra, 327 U.S. at page 653, 66 S.Ct. at page 744: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” See also Boston & M. R. R. v. Meech, 1 Cir., 1946, 156 F.2d 109, certiorari denied 329 U.S. 763, 67 S.Ct. 124, 91 L.Ed. 658. Our" }, { "docid": "3835936", "title": "", "text": "an employee of the railroad company within the purpose and spirit of the Federal Employers’ Liability act. Affirmed. . Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965). . Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). . Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969); Denver and Rio Grande Western Railroad Co. v. Conley, 293 F.2d 612 (10th Cir. 1961); Fleming v. Kellett, 167 F.2d 265 (10th Cir. 1948). . Murray v. Denver and Rio Grande Western Railroad Co., 229 F.2d 644 (10th Cir. 1956). . Webb v. Illinois C. R. Co., 352 U.S. 512, 515, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957). . Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, at 35, 64 S.Ct. 409, at 412 (1944); see Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965). . See Shenker v. Baltimore and Ohio Railroad Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963). . Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). . Baker v. Texas & Pacific R. Co., 359 U.S. 227, at 228, 79 S.Ct. 664, at 665, 3 L.Ed.2d 756 (1959). . Byrne v. Pennsylvania Railroad Company, 262 F.2d 906, 912 (3d Cir. 1959). . Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959). . Cimorelli v. New York Cent. R. Co., 148 F.2d 575, 577 (6th Cir. 1945). . Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 400, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960). . The district court relied on Pennsylvania R. Co. v. Barlion, 172 F.2d 710 (6th Cir. 1949). In addition, see Baker v. Texas & Pac. R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959); Smith v. Norfolk & Western Ry. Co., 407 F.2d 501 (4th Cir. 1969); Pennsylvania R. Co. v. Roth, 163 F.2d 161 (6th Cir. 1947); Cimorelli v. New York Cent. R. Co., 148 F.2d 575 (6th Cir. 1945);" }, { "docid": "12871313", "title": "", "text": "PER CURIAM: Recognizing the difficulties the Court’s opinion might create in the trial of cases involving joinder of Jones Act and unseaworthiness claims, the Court sua sponte stayed issuance of the mandate in order to consider these problems further. Having fully reviewed the prior opinion, see Comeaux v. James, 666 F.2d 294 (5th Cir.1982), the Court supplements it by adding the following: The “producing cause” FELA standard, used for Jones Act negligence, facilitates proof by the employee, incorporating any cause regardless of immediacy. Plaintiff’s burden of proving such cause is “featherweight,” Davis v. Hill Engineering, Inc., 549 F.2d 314, 331 (5th Cir.1977), and all that is required is a showing of “slight negligence,” Allen v. Seacoast Products, Inc., 623 F.2d 355, 361 (5th Cir.1980). In keeping with this less demanding standard of proof of causation, the test for sufficiency of evidence in a Jones Act case also requires less evidence to support a finding and directed verdicts and j.n.o.v. motions are granted “only when there is a complete absence of probative facts” to support a verdict. Lavender v. Kurn, 327 U.S. 645, 652-53, 66 S.Ct. 740, 743, 90 L.Ed.2d 916, 922 (1946) (construing standard for FELA cases, applicable to Jones Act cases, Ferguson v. Moore-McCormick Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957)); Kendrick v. Illinois Central Gulf Railroad Co., 669 F.2d 341, 343 n. 1 (5th Cir.1982); Comeaux v. T.L. James & Co., 666 F.2d at 298 n. 3; Allen v. Seacoast Products, Inc., 623 F.2d 355, 3359-60 (5th Cir.1980). Similarly, we have applied the same standards of proof, causation, and review to the issue of the plaintiff’s contributory negligence. See Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 n. 2 (5th Cir.1978) (applying Lavender standard of review to Jones Act case whether jury verdict favors plaintiff or defendant); McBride v. Loffland Brothers Co., 422 F.2d 363, 365 (5th Cir.1970) (applying Lavender test to sufficiency of evidence of contributory negligence); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 822-24 (5th Cnv 1965) (FELA case applying single standard of proximate" }, { "docid": "9364393", "title": "", "text": "a cause of action based on violations of the Safety Appliance Act. 45 U.S.C. § 51. The peculiar characteristics of this newly-created cause of action were described by Mr. Justice Brennan in Crane v. Cedar Rapids & I. C. R. R., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969), as follows: “In such actions, the injured employee [or his or her personal representative in case of death] is required to prove only the statutory violation and thus is relieved of the burden of proving negligence. . . He is not required to prove common-law proximate causation but only that his injury resulted ‘in whole or in part’ from the railroad’s violation of the Act, . . . and the railroad is deprived of the defenses of contributory negligence and assumption of risk . . . . ” (citations omitted) 359 U.S. at 166, 89 S.Ct. at 1708. The standard applied by federal courts in determining whether there is sufficient evidence to send a FELA case to the jury is significantly broader than the standard applied in common law negligence actions. As stated by the United States Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” See Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S. Ct. 443,1 L.Ed.2d 493 (1957); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037 (10th Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Chicago R.I. & P.R.R. v. Melcher, 333 F.2d 996 (8th Cir. 1964); Prosser, Torts § 80, p. 536 (4th ed. 1971). To this standard, however, must be added the admonition found in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944): “The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked,” See Missouri-Kansas-Texas Ry. v. Hearson, supra, 422 F.2d at" }, { "docid": "2359985", "title": "", "text": "One other point. We do not agree with the trial judge’s view that a verdict should have been directed for the defendant. The Supreme Court in Federal Employers’ Liability Act cases has time and again, condemned directed verdicts for the defendant on the ground of insufficiency of evidence. Ellis v. Union Pacific Railroad Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tennant v. Peoria & Pekin Union Railway Co., 1944, 321 U. S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Railway, Inc., 1943, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed.. 1444; Tiller v. Atlantic Coast Line Railroad Co 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L.Ed. 610. So long as an evidentiary basis for a jury verdict exists, the jury should be permitted to exercise its judgment. Lavender v. Kurn, supra, 327 U.S. at page 653, 66 S.Ct. at page 744. To the same effect see the recent cases of Rogers v. Missouri Pacific Railroad Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Ferguson v. Moore-McCormack Lines, 1957, 352 U.S. 521, 77 S.Ct. 443, 459, 1 L.Ed.2d 515. See also Hoyt v. Central Railroad, 3 Cir., 1957, 243 F.2d 840. Here the trial judge submitted the case to the jury, and in his instructions recognized that it was the jury’s function to determine whether the defendant had breached its duty in failing to exercise the proper degree of care. “In this situation the employer’s liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation * * . ” Tiller v. Atlantic Coast Line Railroad Co., supra, 318 U.S. at page 67, 63 S.Ct. at page 451. If the measures employed by the defendant were inadequate to protect plaintiff in the course of his employment, and the failure to provide such adequate protective" }, { "docid": "2359984", "title": "", "text": "absence of liability of the defendant by reason of its non-negligence. Whether the sum total of the possibilities stated amounted to a positive affirmative showing of substantial prejudice is unnecessary to a finding that the communication between judge and jury in the absence of counsel here constituted reversible prejudicial error. The strong possibility of substantial prejudice demonstrated here is more than sufficient. In Parfet v. Kansas City Life Ins. Co., 10 Cir., 128 F.2d 361, 362 certiorari denied 1942, 317 U.S. 364, 63 S.Ct. 50, 87 L.Ed. 526, it was held that reversible error is committed “ * * * even though substantial prejudice is not affirmatively shown” where additional instructions are given by the trial judge to the jury in the absence of the parties or their counsel. And in Fillippon v. Albion Vein Slate Co., supra, 250 U.S. at page 82, 39 S.Ct. .at page 437, the Supreme Court held such instructions to be “presumptively injurious * * * [furnishing] ground for reversal unless it affirmatively appears that they were harmless.” (Emphasis supplied.) One other point. We do not agree with the trial judge’s view that a verdict should have been directed for the defendant. The Supreme Court in Federal Employers’ Liability Act cases has time and again, condemned directed verdicts for the defendant on the ground of insufficiency of evidence. Ellis v. Union Pacific Railroad Co., 1947, 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tennant v. Peoria & Pekin Union Railway Co., 1944, 321 U. S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Railway, Inc., 1943, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed.. 1444; Tiller v. Atlantic Coast Line Railroad Co 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L.Ed. 610. So long as an evidentiary basis for a jury verdict exists, the jury should be permitted to exercise its judgment. Lavender v. Kurn, supra, 327 U.S. at page 653, 66 S.Ct. at page 744. To the same effect see the recent cases of Rogers v." }, { "docid": "23518339", "title": "", "text": "at 510, 77 S.Ct. at 451. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957); Herdman v. Pennsylvania Railroad Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508 (1957); Webb v. Illinois Central Railroad Co., 352 U.S. 512, 516, 77 S.Ct. 451, 454, 1 L.Ed.2d 503 (1957); Mendoza v. Southern Pacific Transportation Co., 733 F.2d 631, 632 (9th Cir.1984) (“only ‘slight’ or ‘minimal’ evidence is needed to raise a jury question”); Clark v. Kentucky & Indiana Terminal Railroad, 728 F.2d 307, 310 (6th Cir.1984); Carlton v. M/G Transport Services, Inc., 698 F.2d 846, 847 (6th Cir.1983) (Jones Act); Johannessen v. Gulf Trading & Transportation Co., 633 F.2d 653, 656 (2d Cir.1980); Perkoski v. New York, Chicago and St. Louis Railroad Company, 217 F.2d 642 (6th Cir.1954); Keith v. Wheeling & L.E. Railway Co., 160 F.2d 654, 658 (6th Cir.), cert. denied, 332 U.S. 763, 68 S.Ct. 67, 92 L.Ed. 348 (1947). See also Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 32-35, 64 S.Ct. 409, 411-413, 88 L.Ed. 520 (1944). Compare Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980) (Jones Act) (“a directed verdict is possible ‘only when there is a complete absence of probative facts’ supporting the nonmovant’s position.”); Fritts v. Toledo Terminal Railroad Co., 293 F.2d 361, 362 (6th Cir.1961) (“the question for this court is whether there was a complete lack of probative facts”). This court has held that: the contentions of the parties and inconsistencies in the proof are not for the trial judge to resolve but for the jury under proper instructions. [However,] [i]t is still the function of the trial judge within narrowly prescribed limits of the statutes herein to pass upon the sufficiency of the evidence____ Fritts, 293 F.2d at 363. For while “disbelief ... [in] testimony would not supply a want of proof,” Moore v. Chesapeake & Ohio Railway Co., 340 U.S. 573, 576, 71 S.Ct. 428, 430, 95 L.Ed. 547 (1951)," }, { "docid": "5744652", "title": "", "text": "standard of proof and causation, the test for sufficiency of evidence in a Jones Act case also requires less evidence to support a finding, and directed verdicts and j. n. o. v. motions are granted “only when there is a complete absence of probative facts” to support a verdict. Lavender v. Kurn, 327 U.S. 645, 652-53, 66 S.Ct. 740, 743, 90 L.Ed. 916, 922 (1946) (construing standard for FELA— Jones Act cases, Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513 (1957)); Kendrick v. Illinois Central Gulf Railroad Co., 669 F.2d 341, 343 n.1 (1982); Comeaux v. T. L. James & Co., 666 F.2d 294, 298 n.3 (5th Cir. 1982); Allen v. Seacoast Products, Inc., 623 F.2d 355, 359-60 (5th Cir. 1980). Like wise, we have applied the same PELA standards of proof, causation, and review of a plaintiff’s negligence to that of contributory negligence. See Campbell v. Seacoast Products, Inc., 581 F.2d 98, 99 n.2 (5th Cir. 1978) (applying Lavender standard of review to Jones Act case whether jury verdict favors plaintiff or defendant) ; McBride v. Loffland Brothers Co., 422 F.2d 363, 365 (5th Cir. 1970) (applying Lavender test to sufficiency of evidence of contributory negligence); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 822-24 (5th Cir. 1965) (FELA case applying single standard of proximate causation to employer and employee negligence). See also Weese v. Chesapeake & O. Ry. Co., 570 F.2d 611, 615 (6th Cir. 1978); Dixon v. Penn Central Co., 481 F.2d 833, 835 (6th Cir. 1973); Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329, 1331 (2nd Cir. 1971). Thus the interrogatory on Jones Act negligence specifically asks if McDermott’s negligence played any part “however slight, in producing plaintiff’s injury” (emphasis added). The complementary interrogatory concerning Alverez’ negligence correctly uses the “producing” cause standard (int. 3(b)). It is clear that the jury, utilizing equal Jones Act standards for both seaman and employer, found under the Jones Act that McDermott was negligent and that Alverez was also negligent. In a separate question (int. 4), the" }, { "docid": "23518338", "title": "", "text": "Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the Court stated: Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury-may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Id. at 506-07, 77 S.Ct. at 448-49 (footnotes omitted). In other words, the case is for the jury “whenever fair-minded men” could find liability on the evidence, id. at 508, 77 S.Ct. at 449, and should be taken from the jury only “where fair-minded jurors cannot honestly differ,” id. at 510, 77 S.Ct. at 451. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957); Herdman v. Pennsylvania Railroad Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508 (1957); Webb v. Illinois Central Railroad Co., 352 U.S. 512, 516, 77 S.Ct. 451, 454, 1 L.Ed.2d 503 (1957); Mendoza v. Southern Pacific Transportation Co., 733 F.2d 631, 632 (9th Cir.1984) (“only ‘slight’ or ‘minimal’ evidence is needed to raise a jury question”); Clark v. Kentucky & Indiana Terminal Railroad, 728 F.2d 307, 310 (6th Cir.1984); Carlton v. M/G Transport Services, Inc., 698 F.2d 846, 847 (6th Cir.1983) (Jones Act); Johannessen v. Gulf Trading & Transportation Co., 633 F.2d 653, 656 (2d Cir.1980); Perkoski v. New York, Chicago and St. Louis Railroad Company, 217 F.2d 642 (6th Cir.1954); Keith v. Wheeling & L.E. Railway Co., 160 F.2d 654, 658 (6th Cir.), cert. denied, 332 U.S. 763, 68 S.Ct. 67, 92 L.Ed. 348 (1947). See also Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed." } ]

[ { "docid": "22781291", "title": "", "text": "and Struzzieri on the substantive and conspiracy counts are reversed, and the substantive counts are remanded for a new trial; the conviction of Salvatore Pánico on the conspiracy count is reversed and remanded for a new trial; the convictions of all other appellants are affirmed. . Count four named Orlandino, Struzzieri and Monastersky; count five named Monastersky, Bentvena and Struzzieri. Orlandino pleaded guilty at the beginning of the first trial. All. appellants were named in count eight. . The following sentences were imposed: Bentvena — 15 years on counts 5 and 8; DiPietro — 20 years; Fernandez — 35 years; Galante — 20 years and $20,000; Loicano- — -20 years; Mancino — 20 years; Mirra — 20 years; Monastersky — 30 years on counts 4, 5 and 8; Ormento — 40 years and $20,000; .Carmine Pánico — 12 years; Salvatore Pánico — 20 years; Sciremammano — 12 years; Struzzieri — 12 years on counts 4, 5 and 8. The sentences imposed on multiple counts are to run concurrently. Fernandez, Monastersky, and Ormento were sentenced as multiple offenders pursuant to 26 U.S.C. § 7237(c). . Polizanno was severed between the first and second trials. . The third stop was a hotel in Coney Island. None of the persons there involved are defendants in this indictment. . See United States v. Bentvena, 288 F.2d 442 (2d Cir.), aff'd sub nom., Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) ; United States v. Galante, 298 F.2d 72 (2d Cir. 1962). . Eleven defendants were punished for contempt for their behavior during trial. . The first trial was bedeviled by similar “illnesses” of the defendants. See United States v. Bentvena, supra, 288 F.2d at 445-46. . “Rule 14. Relief from Prejudicial Joinder “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.” . This incident has been" } ]

[ { "docid": "21200146", "title": "", "text": "indeed, having determined that the purpose of section 2255 was to permit the trial judge, because of his familiarity with the proceedings and ability to supplement the record, to pass upon motions thereunder, now to ascribe to Congress the intention to disqualify any judge possessing that familiarity with the proceedings from passing upon the motion. We are of the opinion that sections 2255 and 455 of Title 28 should be construed together. So construed, it is apparent that the district judge here was not a material witness within the meaning of the latter section. Cf. United States v. Hughes, 325 F.2d 789 (2 Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964); Simmons v. United States, 302 F.2d 71 (3 Cir. 1962); Davis v. United States, 210 F.2d 118 (8 Cir. 1954); Dillon v. United States, 307 F.2d 445, 453 (9 Cir. 1962) (dissenting opinion). In support of his argument to the contrary, Smith relies strongly upon two cases decided by the Court of Appeals for the Second Circuit, United States v. Halley, 240 F.2d 418, cert. denied, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 917 (1957), and United States v. Valentino, 2 Cir., 283 F.2d 634 (1960). Neither case is in point. In United States v. Halley, supra, the appellant had filed a motion in the nature of coram nobis to vacate a judgment and sentence. The hearing on the motion was held before the judge who had presided at the original trial. Although the appellant was the only witness, the district judge refused to credit his testimony that he was not advised of his right to counsel and had not waived it, noted that it was always his practice to advise the accused of his right to counsel, and denied the motion. Although the Court of Appeals suggested that it might be advisable to have such cases heard by some judge other than the one who had presided at the time of plea and sentence, it affirmed the action of the District Court. United States v. Valentino, supra, also involved an appeal from" }, { "docid": "14652215", "title": "", "text": "justice. ****** We have described sufficiently the outrageous conduct of the defendants at this trial. We find that the trial judge, notwithstanding this harassment, maintained an impartial attitude and did all in his power to safeguard the rights of the defendants and to minimize the effects of these outbursts. After the incident in question, as after all similar disturbances, the judge instructed the jury to ignore it. We find no ground for reversal here.” United States v. Bentvena, supra, 319 F.2d 932-933. We conclude that petitioner has failed to demonstrate a sufficient basis for disqualifying this court from considering his motion to vacate sentence. Accordingly, petitioner’s motion to disqualify this court is denied, and his motion to vacate sentence is denied without a hearing. So ordered. . 28 U.S.C. § 455. . 28 U.S.C. § 144. . See United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert, denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959). . The two-hour delay was required to replace the witness chair, bolt it to the stand, and obtain restraining equipment from the New York City police department in order to prevent a recurrence of such misconduct. . Earlier in the trial, we found it necessary, because of countless motions and applications, to rule that all motions and applications would be heard at the close of the day’s testimony (Tr. 5666), otherwise interruptions would have resulted in interminable delays which would surely have outlasted the alternate jurors, as on the first trial. . We did not say “until a time when he can .cooperate in Ms own defense,” as Mr. Lewis tries to suggest on page 16 of his affidavit by putting trial counsel’s words into the court’s mouth. See trial transcript, p. 6469. . The witness Drolet’s testimony, almost totally hearsay, was favorable to petitioner’s claim that the witness Cadieux had committed perjury for pay when she testified for the government in the prior trial. Tr. 6473-6499. . Tr. 6546-6550. . Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). . Sanders v. United States, 373" }, { "docid": "3206533", "title": "", "text": "disqualified himself under 28 U.S.C. § 455, since he would be a material witness at any evidentiary hearing held to determine the circumstances of their absence from the conflict of interest hearing. “[T]he literal terms of 28 U.S.C. § 455 (1958) require disqualification only if the judge is a witness.” United States v. Hughes, 325 F.2d 789, 792-793 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). Here, the trial judge properly denied appellants a hearing and therefore the occasion for his testimony never arose. We need not decide the extent to which considerations of efficient judicial administration and particularly “the purpose of section 2255 * * * to permit the trial judge, because of his familiarity with the proceedings and ability to supplement the record,” may limit the scope of Section 455. See United States v. Smith, 337 F.2d 49, 51-54 (4th Cir. 1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). The order denying appellants’ motion is affirmed. . “§ 2255. Federal custody; remedies on motion attacking sentence. A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized" }, { "docid": "3315250", "title": "", "text": "(1962). Finally, Rosa’s contention that he should have been permitted to withdraw his guilty plea at sentencing requires little comment. Even in federal trials, if a plea of guilty has been knowingly and voluntarily made, “permission to withdraw the plea may be granted at the discretion of the trial court and a denial thereof is reversible only if it appears that there has been an abuse of discretion.” United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957). See also Kercheval v. United States, supra, 274 U.S. at 224, 47 S.Ct. 582; United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). A fortiori, on an application for habeas corpus by a state prisoner, our review is premised on the fact that the motion for withdrawal of the plea rests in the sound discretion of the trial judge. United States ex rel. Best v. Fay, 239 F.Supp. 632, 634 (S.D. N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). In the instant case, no valid ground was presented for Rosa’s requested change of plea, see Pleas of Guilty, supra, § 2.1, and there is no reason to believe that any injustice has been done. See and compare Jones v. Eyman, 353 F.2d 528 (9th Cir. 1966); United States ex rel. Elksnis v. Gilligan, supra. Under the circumstances, whether to permit withdrawal of the plea was within the state trial judge’s discretion which clearly was not abused. Accord ingly, we refuse to upset his decision on federal habeas corpus. The court wishes to express its appreciation to Gerald W. Griffin, Esq., for his capable representation of appellant. Affirmed. . The prosecutor indicated that he would file with the court the necessary statement explaining his reasons for recommending that the court accept the plea of guilty to the lesser offense, see N.Y.Code Crim.Proc. § 342-a. . The following discussion illustrates the painstaking care taken by the trial judge to insure that the pleas of guilty conformed to constitutional" }, { "docid": "10657798", "title": "", "text": "tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice.” United States v. Bentvena, supra, 319 F.2d at 931-932. We held eleven defendants, including petitioner, in contempt. Petitioner was only sentenced to ten days because we found mitigating circumstances in that he was suffering from a toothache at the time he attempted to break into the robing room. All contempt convictions, except Salvatore Panico’s, were either dismissed as moot or affirmed on July 20, 1962. United States v. Bentvena, 304 F.2d 883 (2d Cir.) (per curiam), cert. denied sub nom. Mirra v. United States, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962). Decision as to Salvatore Pánico was reserved, however, until September 14, 1962, when his contempt con viction was affirmed, Judge Friendly dissenting. The Supreme Court, Mr. Justices Harlan and Clark dissenting, reversed Salvatore Panico’s contempt conviction and remanded the matter for plenary hearing on the issue of his competence to form the requisite criminal intent. United States v. Panico, 308 F.2d 125 (2d Cir. 1962), vacated and remanded, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963). With this review of the record, we turn to consideration of this petition. We are mindful that: “The statute requires ‘a prompt hearing’ when the allegations of deprivation of constitutional rights raise disputed issues of fact in order to ‘determine the issues and make findings of fact and conclusions of law’ with respect to them ‘unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ 28 U.S.C. § 2255; Sanders v. United States, supra, 373 U.S. 1 at 6, 15, 83 S.Ct. 1068 at 1077, 10 L.Ed.2d 148; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Machibroda v. United States, supra, 368 U.S. 487 at 494, 82 S.Ct. 510, 7 L.Ed.2d 473; Note, Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970). A hearing is not required," }, { "docid": "14652209", "title": "", "text": "2255 must be filed in the sentencing court, rather than in the district court where the prisoner is confined, as was the practice under habeas corpus, precisely because the sentencing judge does have intimate knowledge of the facts and circumstances of the case. This statutory requirement was designed to relieve other judges from the labor of learning the facts from a cold and often voluminous record and to correct the unseemly practice under habeas corpus of pitting the credibility of a United States district judge against that of a convicted criminal. Equally imperative was the congressional purpose of preventing a disruption of judicial business while the trial judge was absent from his own court testifying in another. This congressional design to supplant a cumbersome, expensive and highly unsatisfactory procedure with a sound, efficient and practical one, would be wholly frustrated if the Mai and sentencing judge were disqualified as a material witness under § 455 in a § 2255 proceeding merely because he knows what happened in his courtroom during the challenged conviction. United States v. Smith, 337 F.2d 49 (4th Cir. 1964), cert, denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). See also United States v. Hughes, 325 F.2d 789, 792-793 (2d Cir.), cert, denied, 377 U.S. 907, 84 S.Ct. 1167,12 L.Ed.2d 178 (1964). Moreover, a literal reading of § 455 shows that disqualification is required only if the court is (or has been) a material witness, and at this stage of this application, no one is a material witness. Here, the only issue is whether petitioner is entitled to a hearing, United States v. Hughes, supra, an issue we have resolved in the negative. , , A second ground urged by petitioner as a basis for disqualification is that the court “has previously shown an intense personal bias and prejudice against” him. Title 28 U.S.C. § 144 provides that: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice * * *" }, { "docid": "3315249", "title": "", "text": "plea was not improperly induced by any action or word of Judge Gellinoff. When, at the sentencing hearing, Rosa moved to reinstate his plea of not guilty to first degree robbery, his stated reason was that “he was acting hastily on the basis of trying to help his co-defendant Colon by permitting him to get the lesser sentence in view of Colon’s proved participation in the crime.” Although advised by able and experienced counsel, it is noteworthy that Rosa did not maintain that Judge Gellinoff had coerced or otherwise improperly induced his plea of guilty. In sum, Judge Sugarman found that Rosa’s plea stemmed from his own free choice, uninfluenced by threat or promise. We hold that this conclusion is amply supported by the evidence and in no event is “clearly erroneous.” See United States ex rel. McGrath v. LaVallee, 348 F.2d at 376, and at 319 F.2d 315 (concurring opinion); United States ex rel. Crump v. Sain, 295 F.2d 699 (7th Cir. 1961), cert. denied, 369 U.S. 830, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962). Finally, Rosa’s contention that he should have been permitted to withdraw his guilty plea at sentencing requires little comment. Even in federal trials, if a plea of guilty has been knowingly and voluntarily made, “permission to withdraw the plea may be granted at the discretion of the trial court and a denial thereof is reversible only if it appears that there has been an abuse of discretion.” United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957). See also Kercheval v. United States, supra, 274 U.S. at 224, 47 S.Ct. 582; United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). A fortiori, on an application for habeas corpus by a state prisoner, our review is premised on the fact that the motion for withdrawal of the plea rests in the sound discretion of the trial judge. United States ex rel. Best v. Fay, 239 F.Supp. 632, 634 (S.D. N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S." }, { "docid": "14652214", "title": "", "text": "and their counsel, as revealed by his comments and rulings, prejudiced the jury against them. To- support these claims, appellants direct our attention to isolated incidents, invari- . ably taken out of context, and ask us to conclude therefrom that the trial judge abandoned his proper sense of impartiality and placed the weight of his position on the side of the prosecution. The trial judge, in his attempt to bring this case to trial and to see it brought to an orderly and expeditious conclusion, was presented with a host of probelms calling for the exercise of his discretion. Having the experience of the first trial before him, he had to make certain that the trial proceeded with reasonable dispatch and, at the same time, guarantee that all steps be taken to safeguard the rights of the defendants. In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice. ****** We have described sufficiently the outrageous conduct of the defendants at this trial. We find that the trial judge, notwithstanding this harassment, maintained an impartial attitude and did all in his power to safeguard the rights of the defendants and to minimize the effects of these outbursts. After the incident in question, as after all similar disturbances, the judge instructed the jury to ignore it. We find no ground for reversal here.” United States v. Bentvena, supra, 319 F.2d 932-933. We conclude that petitioner has failed to demonstrate a sufficient basis for disqualifying this court from considering his motion to vacate sentence. Accordingly, petitioner’s motion to disqualify this court is denied, and his motion to vacate sentence is denied without a hearing. So ordered. . 28 U.S.C. § 455. . 28 U.S.C. § 144. . See United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert, denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959). . The two-hour delay was required to replace the witness chair, bolt it to the stand," }, { "docid": "21200145", "title": "", "text": "179 (D.D.C.1957), aff’d, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958), cert. denied, 358 U.S. 847, 79 S.Ct. 74 (1958); Dillon v. United States, 307 F.2d 445, 453 (9 Cir. 1962) (dissenting opinion). We conclude that the district judge was .not disqualified merely because he had presided at Smith’s arraignment and had imposed sentence. Smith next contends that, in any event, the judge should have refrained from ruling upon the motion because he was a material witness to what had transpired at the original proceedings and suggests that when the judge relied in part upon his own memory to supplement the record he, Smith, was not accorded due process of law. In this connection Smith points to 28 U.S.C.A. § 455 which provides in part that “[a]ny justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel [or], is or has been a material witness, * * What we have said above is largely dispositive of this argument. It would be anomalous, indeed, having determined that the purpose of section 2255 was to permit the trial judge, because of his familiarity with the proceedings and ability to supplement the record, to pass upon motions thereunder, now to ascribe to Congress the intention to disqualify any judge possessing that familiarity with the proceedings from passing upon the motion. We are of the opinion that sections 2255 and 455 of Title 28 should be construed together. So construed, it is apparent that the district judge here was not a material witness within the meaning of the latter section. Cf. United States v. Hughes, 325 F.2d 789 (2 Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964); Simmons v. United States, 302 F.2d 71 (3 Cir. 1962); Davis v. United States, 210 F.2d 118 (8 Cir. 1954); Dillon v. United States, 307 F.2d 445, 453 (9 Cir. 1962) (dissenting opinion). In support of his argument to the contrary, Smith relies strongly upon two cases decided by the Court of Appeals for the Second Circuit, United States" }, { "docid": "21200147", "title": "", "text": "v. Halley, 240 F.2d 418, cert. denied, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 917 (1957), and United States v. Valentino, 2 Cir., 283 F.2d 634 (1960). Neither case is in point. In United States v. Halley, supra, the appellant had filed a motion in the nature of coram nobis to vacate a judgment and sentence. The hearing on the motion was held before the judge who had presided at the original trial. Although the appellant was the only witness, the district judge refused to credit his testimony that he was not advised of his right to counsel and had not waived it, noted that it was always his practice to advise the accused of his right to counsel, and denied the motion. Although the Court of Appeals suggested that it might be advisable to have such cases heard by some judge other than the one who had presided at the time of plea and sentence, it affirmed the action of the District Court. United States v. Valentino, supra, also involved an appeal from a denial of a motion in the nature of coram nobis. The Court of Appeals held that the appellant was entitled to a hearing to determine whether at the time of his trial he was competent to understand the proceedings against him and whether he had waived counsel. Pointing out that because of the lapse of time since the original trial (nearly thirty years) it might be difficult to determine what had transpired, the court merely stated that “[t]he hearing should be held before a judge who will not be required to testify as a material witness in the proceeding.” Significantly, neither Halley nor Valentino mentioned section 2255 or section 455. In a recent case in which the district judge had actually testified as a witness, the Court of Appeals for the Second Circuit rejected the defendant’s contention that the judge should have disqualified himself under 28 U.S.C.A. § 455. United States v. Hughes, 325 F.2d 789 (1964). After noting that the judge’s remarks were not relevant to the primary Issue's in the case, the" }, { "docid": "7067656", "title": "", "text": "did file a second affidavit of bias and prejudice after the case had been decided and reviewed by this Court. The statute does not provide a remedy similar to habeas corpus or Title 28 Section 2255 proceedings, where successive petitions may be filed. In plain and unequivocal language the statute permits only one affidavit of bias and prejudice to be filed by a party in a case. Martin v. Texas Indem. Ins. Co., 214 F.Supp. 477 (N.D.Tex.1962), cert. denied 377 U.S. 971, 84 S.Ct. 1652, 12 L.Ed.2d 740 (1964). The District Judge did not err in refusing to recuse himself. Since the affidavit alleged personal bias and prejudice only with respect to the defendant Hoffa, the other appellants have no standing to question the ruling. Motion to Disqualify Under Section 455 The basis for this motion is that the District Judge, by answering the attack upon himself, in some manner became a material witness in the case and therefore was disqualified under Section 455 from passing upon the motion for a new trial. The fact that the judge ruled adversely to Appellants on their Section 144 affidavit of bias and prejudice, provided no ground for the disqualification of him under Section 455. Appellants were granted a review of the Judge’s ruling on their Section 144 affidavit, which we have found to be correct. No hearing was held in the District Court on the Section 144 affidavit as it was disposed of entirely on the basis of its insufficiency. Nor do we believe that an oral hearing was required on the third motion for a new trial, as we will point out later. The Judge did not have a substantial interest (pecuniary) in the case, nor was he a material witness. See United States v. Smith, 337 F.2d 49 (4th Cir. 1964), cert. denied 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). There is an obligation upon a Judge not to recuse himself when there is no occasion. In Re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961). The Third Motion For A New Trial The misconduct alleged" }, { "docid": "10657832", "title": "", "text": "occasions by the United States Court of Appeals for this circuit and has been found to be free from prejudicial conduct on our part. Accordingly, petitioner’s motions to vacate the judgment of conviction and the sentence heretofore imposed upon him on July 10, 1962, for a hearing, and to disqualify this court from considering this application for post-conviction relief are in all respects denied. So ordered. . The record has been scrutinized and summarized many times by numerous appellate judges. See United States v. Bentvena, 288 F.2d 442 (2d Cir.) (Chief Judge Lumbard, Judge Waterman and Judge Madden, United States Court of Claims, sitting by designation), aff’d sub nom. Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961); United States v. DiPietro, 302 F.2d 612 (2d Cir. 1962) (per curiam) (Judges Friendly, Smith and Marshall); United States v. Bentvena, 308 F.2d 47 (2d Cir. 1962) (Chief Judge Lumbard); United States v. Galante, 308 F.2d 63 (2d Cir. 1962) (Judge Kaufman); United States v. Panico, 308 F.2d 125 (2d Cir. 1962) (Judges Moore and Smith, Judge Friendly dissenting), vacated and remanded, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963); United States v. Bentvena, 319 F.2d 916 (2d Cir.) (Judges Moore, Smith and Hays), cert. denied [Ormento v. United States, DiPietro v. United States, Fernandez v. United States, Panico v. United States, Galante v. United States, Laicano v. United States, Mancino v. United States, Sciremammano v. United States, Mirra v. United States], 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L. Ed.2d 271, 272 (1963); Mirra v. United States, 255 F.Supp. 570 (S.D.N.Y.1966), aff’d, 379 F.2d 782 (2d Cir.) (Chief Judge Lumbard, Judges Waterman and Smith), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967); Panico v. United States, 291 F.Supp. 728 (S.D.N.Y.1968), aff’d, 412 F.2d 1151 (2d Cir. 1969) (Judges Waterman, Moore and Friendly), cert. denied, 397 U.S. 921, 90 S.Ct. 901, 25 L.Ed.2d 102 (1970). . Some glimpse of the parallel, outrageous and unprecedented conduct of the defendants in this case, designed to frustrate, delay, abort, or inject reversible" }, { "docid": "9673740", "title": "", "text": "declared the defendant sufficiently competent to enter a valid plea. The Tenth Circuit upheld the ruling, and found the lack of a full hearing on competence was not an abuse of the trial judge’s discretion. See also United States v. Erlenborn, 483 F.2d 165 (9th Cir.1973), where the defendant claimed he had misunderstood the nature of the charge against him; United States v. Tivis, 421 F.2d 147 (5th Cir.1970), where the defendant claimed he had been inadequately represented by counsel at the time of making his plea; United States v. Hughes, 325 F.2d 789 (2d Cir.1964) cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178, where the defendant claimed his plea had been induced by threats of the prosecuting attorney; and United States v. Arrendondo, 447 F.2d 976 (5th Cir.1971), cert. denied, 404 U.S. 1026, 92 S.Ct. 683, 30 L.Ed.2d 676, where the defendant claimed newly discovered evidence would prove his innocence. In all of these cases the appellate court upheld the district court’s denial of the motion to withdraw a guilty plea prior to sentencing. It is obvious that resolution of these cases depends, to a large degree, on whether the appellate court is convinced of the merits underlying the petitioner’s claims. As in all cases involving sufficiency of the evidence, the authoritative value of such decision is limited. Each case must be evaluated on its own facts. One may generalize, however, to the extent that the cases illustrate a distinct reluctance to find that the trial court has abused its discretion in denying the withdrawal motion. Davila asks that the district court be required to withdraw his plea because his two companions in the alleged original conspiracy have been acquitted. Because Davila was not finally charged with the crime of conspiracy, but rather with misprision of that crime, his claim is not identical to that of a defendant whose co-defendants have been found not guilty. But for our purposes the analogy is close, and indeed, engenders less sympathy for Davila than does the situation of a convicted co-defendant when the other defendants in the same crime" }, { "docid": "14652210", "title": "", "text": "v. Smith, 337 F.2d 49 (4th Cir. 1964), cert, denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). See also United States v. Hughes, 325 F.2d 789, 792-793 (2d Cir.), cert, denied, 377 U.S. 907, 84 S.Ct. 1167,12 L.Ed.2d 178 (1964). Moreover, a literal reading of § 455 shows that disqualification is required only if the court is (or has been) a material witness, and at this stage of this application, no one is a material witness. Here, the only issue is whether petitioner is entitled to a hearing, United States v. Hughes, supra, an issue we have resolved in the negative. , , A second ground urged by petitioner as a basis for disqualification is that the court “has previously shown an intense personal bias and prejudice against” him. Title 28 U.S.C. § 144 provides that: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice * * * against him * * * such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” Disregarding embellishments, arguments and conclusions, the only facts alleged by petitioner are that the trial judge denied his motion for a psychiatric examination, held him in contempt, and jn stating its reasons for denying the motions, remarked that petitioner’s behavior at trial was “wilful and deliberate, designed to provoke a mistrial or terrorizethis jury or the court,” and that his alleged sleepiness and inability to communicate with counsel was a “put-up job” and a “fake.” Petitioner adds that upon sentencing him for contempt, the court said that petitioner thought from the fact that his previous twenty-day sentence for contempt had been characterjze(j as “seVere” by the Court of Appeals, that he had “a license to break up this trial with the most outrageous conduct that has ever come to the attention of this Court in any trial. * * * You merit the sentence which the Court has given you_ Take him out.”" }, { "docid": "10657833", "title": "", "text": "Smith, Judge Friendly dissenting), vacated and remanded, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963); United States v. Bentvena, 319 F.2d 916 (2d Cir.) (Judges Moore, Smith and Hays), cert. denied [Ormento v. United States, DiPietro v. United States, Fernandez v. United States, Panico v. United States, Galante v. United States, Laicano v. United States, Mancino v. United States, Sciremammano v. United States, Mirra v. United States], 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L. Ed.2d 271, 272 (1963); Mirra v. United States, 255 F.Supp. 570 (S.D.N.Y.1966), aff’d, 379 F.2d 782 (2d Cir.) (Chief Judge Lumbard, Judges Waterman and Smith), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967); Panico v. United States, 291 F.Supp. 728 (S.D.N.Y.1968), aff’d, 412 F.2d 1151 (2d Cir. 1969) (Judges Waterman, Moore and Friendly), cert. denied, 397 U.S. 921, 90 S.Ct. 901, 25 L.Ed.2d 102 (1970). . Some glimpse of the parallel, outrageous and unprecedented conduct of the defendants in this case, designed to frustrate, delay, abort, or inject reversible error into, the trial may be gained by referring to some of the related cases in this and the appellate courts: United States v. Bentvena, supra, 288 F.2d 442; United States v. Galante, 298 F.2d 72 (2d Cir. 1962); Loicano v. MacMahon, Docket No. 27487, 2d Cir., Apr. 4, 1962; United States v. DiPietro, supra, 302 F.2d 612; United States v. Bentvena, 304 F.2d 883 (2d Cir.) (per curiam), cert. denied sub nom. Mirra v. United States, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962); United States v. Bentvena, 308 F.2d 47 (2d Cir. 1962); United States v. Galante, supra, 308 F.2d 63; United States v. Panico, supra, 308 F.2d 125; United States v. Bentvena, supra, 319 F.2d 916; United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963); Mirra v. United States, supra, 255 F. Supp. 570; Sciremammano v. United States, Docket No. 67 Civ. 3546, S.D.N.Y., Dec. 6, 1967. . See Note 1, supra. . Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Diaz v. United States, 223" }, { "docid": "23221795", "title": "", "text": "a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. We adhere to the proposition that “few things could be so relevant” in the sentencing of Needles “as other criminal activity . . . related to the crime at hand.” See also Williams v. New York, 337 U.S. 241, 246-251, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir. 1972); United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.) (per curiam), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968). The final claim regarding the guilty plea is that the trial court abused its discretion by failing to give “careful” consideration to appellant’s motion to change his plea. Appellant points to the speed with which the judge, at the April 10 hearing, denied the motion after defendant’s counsel had stated the reason for it. But speed is not necessarily inconsistent with careful consideration, any more than delay is a guaranty of a wise decision. At that point in the hearing, the only reason given to the judge for the withdrawal was that the pre-sentence report “is replete with statements which are contradictory to the truth and is highly derogatory of the defendant . . . .” Based on that statement, it was entirely proper for the judge to decide that he needed no fur ther argument on the issue of change of plea, knowing that he could thereafter hear the defendant further on the claimed inaccuracies as they bore on the question of sentence. Thus, there was no abuse of discretion in the judge’s refusal to allow Needles to withdraw his guilty plea because of the alleged “surprising” inaccuracy of the pre-sentence report. See United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). II We turn now" }, { "docid": "8091946", "title": "", "text": "changes his mind and now wants a jury trial. Note, Withdrawal of Guilty Pleas in the Federal Courts Prior to Sentencing, 27 Baylor L.Rev. 793, 799 (1975). A constitutional obstacle to the conviction warranting habeas corpus relief, such as ineffective assistance of counsel, is also a “fair and just reason.” See advisory committee’s note, ante. Whether a defendant has pled intelligently and voluntarily, depends upon the competence of counsel’s advice. Hill v. Lockhart, 474 U.S. 52, -, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). As part of weighing the equities of a Rule 32(d) motion, a district court may account for any prejudice to the government from withdrawing the plea. Kobrosky, 711 F.2d at 455. Only after a defendant has brought forward a “fair and just” reason, is the government compelled to demonstrate prejudice to its legitimate interests as part of its successful defense against a Rule 32(d) motion. United States v. Soft, 558 F.2d 1073, 1083 (2d Cir.1977); Núñez Cordero, 533 F.2d at 725. In the case before us, appellant has not adduced a “fair and just reason.” To begin with, appellant’s purported claim of innocence lacks merit. Acevedo concedes that, unlike the defendant in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), his assertion of innocence was not raised at the change of plea hearing. His asseveration came only at sentencing, after the Taillex conviction, and after the Rule 11 hearing in this case. Although appellant claims to possess exculpatory information to sustain his innocence, no insight has been provided into its substance. No defenses have been advanced. The fact that Acevedo denied his culpability when questioned by federal agents before changing his plea is immaterial. Here, the trial court did not abuse its discretion in refusing to give weight to a self-serving, unsupported claim of innocence raised judicially for the first time after the Rule 11 hearing. United States v. Hughes, 325 F.2d 789, 791 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). Appellant’s next argument is that his guilty plea of June 4" }, { "docid": "23221796", "title": "", "text": "after defendant’s counsel had stated the reason for it. But speed is not necessarily inconsistent with careful consideration, any more than delay is a guaranty of a wise decision. At that point in the hearing, the only reason given to the judge for the withdrawal was that the pre-sentence report “is replete with statements which are contradictory to the truth and is highly derogatory of the defendant . . . .” Based on that statement, it was entirely proper for the judge to decide that he needed no fur ther argument on the issue of change of plea, knowing that he could thereafter hear the defendant further on the claimed inaccuracies as they bore on the question of sentence. Thus, there was no abuse of discretion in the judge’s refusal to allow Needles to withdraw his guilty plea because of the alleged “surprising” inaccuracy of the pre-sentence report. See United States v. Hughes, 325 F.2d 789, 792 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). II We turn now to the alleged inaccuracies in the pre-sentence report and appellant’s claim that because of them the sentence was improper. The issues impliedly raised are relatively new, are broad in their implications, and are largely unanswered, at least in this circuit. They are the logical outgrowth of the recent movement toward disclosing to convicted defendants or their counsel at least the substance of adverse information in pre-sentence reports. See, e. g., United States v. Bryant, 143 U.S.App.D.C. 53, 442 F.2d 775, cert. denied, 402 U.S. 932, 91 S.Ct. 1534, 28 L.Ed.2d 866 (1971); United States v. Fischer, 381 F.2d 509 (2d Cir. 1967), cert. denied, 390 U.S. 973, 88 S.Ct. 1064, 19 L.Ed.2d 1185 (1969). We do not deprecate this trend; only last month we again emphasized the desirability of the practice. United States v. Brown, 470 F.2d 285 (2d Cir. 1972). But here — as elsewhere in life — things are seldom all black or all white; improvements in procedure may create their own problems. If pre-sentence reports are to be disclosed, obviously some sensible" }, { "docid": "3206532", "title": "", "text": "entire transcript of the hearing before their first appeal and indeed reprinted it in their appendix on that appeal. The issue considered at the hearing was before this court on the previous appeal. We concluded that no impropriety or prejudice to appellants had been shown. The question of appellants’ absence from the hearing was not raised by counsel nor by appellants themselves at any time during the earlier proceedings. Appellants’ claim that hearing the conflict of interest matter in chambers constituted denial of a public trial is equally without merit. Hayes v. United States, 296 F.2d 657, 668 (8th Cir. 1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1033, 8 L.Ed.2d 85 (1962). In these circumstances, the “motion * * * files and records of the case conclusively show that [appellants are] entitled to no relief” and the trial court correctly denied them a hearing. Simmons v. United States, 302 F.2d 71, 80 (3d Cir. 1962); Burley v. United States, 295 F.2d 317 (10th Cir. 1961). III. Appellants argue that the District Judge should have disqualified himself under 28 U.S.C. § 455, since he would be a material witness at any evidentiary hearing held to determine the circumstances of their absence from the conflict of interest hearing. “[T]he literal terms of 28 U.S.C. § 455 (1958) require disqualification only if the judge is a witness.” United States v. Hughes, 325 F.2d 789, 792-793 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). Here, the trial judge properly denied appellants a hearing and therefore the occasion for his testimony never arose. We need not decide the extent to which considerations of efficient judicial administration and particularly “the purpose of section 2255 * * * to permit the trial judge, because of his familiarity with the proceedings and ability to supplement the record,” may limit the scope of Section 455. See United States v. Smith, 337 F.2d 49, 51-54 (4th Cir. 1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). The order denying appellants’ motion is affirmed. . “§ 2255. Federal custody; remedies" }, { "docid": "10657797", "title": "", "text": "of the record here, it is that the trial judge was justified, indeed was forced, to resort to stern measures to obtain order in his courtroom.” United States v. Bentvena, supra, 319 F.2d at 930-931. The Court of Appeals, denying defendant Galante’s application for bail, found that the defendants’ misconduct demonstrated “a concerted effort to interfere with the judicial process.” United States v. Galante, 308 F.2d 63, 64 (2d Cir. 1962). That conclusion has been shared by nine different appellate judges, who, in one context or another, have scrutinized this record and reviewed the conduct of the defendants at either or both of their trials. Answering defendants’ contention that they had been denied a fair trial by the unruly incidents and our measures to cope with them, the Court of Appeals observed: “The judge did all in his power to minimize their effect, and we find no ground for reversal in the circumstances. Any other answer to these contentions would produce little less than anarchy. •x- * -x- *• * In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice.” United States v. Bentvena, supra, 319 F.2d at 931-932. We held eleven defendants, including petitioner, in contempt. Petitioner was only sentenced to ten days because we found mitigating circumstances in that he was suffering from a toothache at the time he attempted to break into the robing room. All contempt convictions, except Salvatore Panico’s, were either dismissed as moot or affirmed on July 20, 1962. United States v. Bentvena, 304 F.2d 883 (2d Cir.) (per curiam), cert. denied sub nom. Mirra v. United States, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962). Decision as to Salvatore Pánico was reserved, however, until September 14, 1962, when his contempt con viction was affirmed, Judge Friendly dissenting. The Supreme Court, Mr. Justices Harlan and Clark dissenting, reversed Salvatore Panico’s contempt conviction and remanded the matter for plenary hearing on the issue of his" } ]

[ { "docid": "22121848", "title": "", "text": "(Sherrer v. Sherrer, 334 U. S. 343) or appeared and admitted her Florida domicile (Coe v. Coe, 334 U. S. 378) or was personally served in the divorce state (Johnson v. Muelberger, 340 U. S. 581, 587), he would be barred from attacking the decree collaterally; and so would a stranger to the Florida proceedings, such as respondent,, unless Florida applies a less strict rule of res judicata to the second husband than it does to the first. See Johnson v. Muelberger, supra. On the other hand, if the defendant spouse had neither appeared nor been served in Florida, the Vermont court, under the ruling in Williams v. North Carolina, 325 U. S. 226, could reopen the issue of domicile. But the burden of undermining the decree of a sister state “rests heavily upon the assailant.” Williams v. North Carolina, supra, p. 234; Esenwein v. Commonwealth, 325 U. S. 279, 280-281. A judgment presumes jurisdiction over the subject matter and over the persons. See Titus v. Wallick, 306 U. S. 282, 287. As stated for the Court by Justice Stone in Adam v. Saenger, 303 U. S. 59, 62, “If it appears on its face to be a record of a'court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.” The Florida decree is entitled to that presumption. That presumption may of course be overcome by showing, for example, that Mann never was served in Florida nor made an appearance in the case either generally or specially to contest the jurisdictional issues. The Vermont Supreme Court recognized that there were no findings on those issues .in the present record. The Court in referring to the case of Williams v. North Carolina, 325 U. S. 226, said, “It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse' neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.” 116" } ]

[ { "docid": "22800046", "title": "", "text": "Mr. Justice Reed delivered the opinion of the Court. The right of a daughter to attack in New York the validity of her deceased father’s Florida divorce is before us. She was his legatee. The divorce was granted in Florida after the father appeared there and contested the merits. The issue turns on the effect in New York under these circumstances of the Full Faith and Credit Clause of the Federal Constitution. Eleanor Johnson Muelberger, respondent, is the child of decedent E. Bruce Johnson’s first marriage. After the death of Johnson’s first wife in 1939, he married one Madoline Ham, and they established their residence in New York. In August 1942, Madoline obtained a divorce from him in a Florida proceeding, although the undisputed facts as developed in the New York Surrogate’s hearing show that she did not comply with the jurisdictional ninety-day residence requirement. The New York Surrogate found that “In the Florida court, the decedent appeared by attorney and interposed an answer denying the wrongful acts but not questioning the allegations as to residence in Florida. The record discloses that testimony was taken by the Florida court and the divorce granted Madoline Johnson. Both parties had full opportunity to contest the jurisdictional issues in that court and the decree is not subject to attack on the ground that petitioner was not domiciled in Florida.” In 1944 Mr. Johnson entered into a marriage, his third, with petitioner, Genevieve Johnson, and in 1945 he died, leaving a will in which he gave his entire estate to his daughter, Eleanor. After probate of the will, the third wife filed notice of her election to take the statutory one-third share of the estate, under § 18 of the New York Decedent Estate Law. This election was contested by respondent daughter, and a trial was had before the Surrogate, who determined that she could not attack the third wife’s status as surviving spouse, on the basis of the alleged invalidity of Madoline’s divorce, because the divorce proceeding had been a contested one, and “[s]ince the decree is valid and final in the State" }, { "docid": "22719586", "title": "", "text": "1924, to Transcontinental of his claims against Meyer was valid, deprived the court of any ground upon which it could predicate a judgment against Meyer, since the only basis for an action by Milliken against Meyer rested upon the claim before its assignment. Where a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is of course open to inquiry. Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Adam v. Saenger, 303 U. S. 59. But if the judgment on its face appears to be a “record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved .by extrinsic evidence, Qr by the record itself.” Adam v. Saenger, supra, at p. 62. In súch case the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is- based. Fauntleroy v. Lum, 210 U. S. 230; Roche v. McDonald, 275 U. S. 449; Titus v. Wallick, 306 U. S. 282. Whatever mistakes of law may underlie the judgment (Cooper v. Reynolds, 10 Wall. 308) it is “conclusive as to all the media concludendi.” Fauntleroy v. Lum, supra, at p. 237. Accordingly, if the Wyoming court had jurisdiction over Meyer, the holding by the Colorado Supreme Court that the Wyoming judgment was void because of an inconsistency between the findings and the decree was not warranted. On the findings of the Colorado trial court, not impaired by, the Colorado Supreme Court, it is clear that Wyoming had jurisdiction over Meyer in the 1931 suit. ' Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment by means of appropriate substituted service. Substituted service in such cases has been quite uniformly upheld where the absent defendant was served at his usual place of abo.de in" }, { "docid": "22800051", "title": "", "text": "a decree of separation in the District of Columbia, the marital domicile, must be given effect in the District. The wife had entered her appearance in the Virginia court and was held bound by its findings of jurisdiction, after contest. In two cases, Williams I and II, 317 U. S. 287, and 325 U. S. 226, we held that domicile of one party to a divorce creates an adequate relationship with the state to justify its exercise of power over the marital relation, 317 U. S. at 298; 325 U. S. at 235. The later Williams case left a sister state free to determine whether there was domicile of one party in an “ex parte” proceeding so as to give the court jurisdiction to enter a decree. 325 U. S. at 230, n. 6, 237, dissent 277; Esenwein v. Commonwealth, 325 U. S. 279, 281. Cf. Rice v. Rice, 336 U. S. 674. Three years later a question undecided in Williams II was answered. In Sherrer v. Sherrer, 334 U. S. 343, a Florida divorce, where both parties appeared personally or by counsel, was held by Massachusetts not to be entitled to full faith or credit in that state because both parties lacked Florida domicile. 320 Mass. 351, 358, 69 N. E. 2d 801, 805. We reversed, saying: “We believe that the decision of this Court in the Davis case and those in related situations are clearly indicative of the result to be reached here. Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.” Pp. 351-352. And cf. pp. 355-356. Coe v. Coe, 334 U. S. 378; cf. Estin v. Estin, 334 U. S. 541. It is clear from the" }, { "docid": "22719585", "title": "", "text": "that Meyer was a resident of Wyoming at the time of the Wyoming action and that the Wyoming judgment was entitled to full faith and credit in Colorado under the federal constitution. The Colorado court, on issues joined, found that Meyer was domiciled in Wyoming when the Wyoming suit was commenced, that the Wyoming statutes for substituted service were constitutional, that the affidavit for constructive service on Meyer was filed in good faith, substantially conformed to the Wyoming statute and stated the truth, that Wyoming had jurisdiction over the person of Meyer, that the Wyoming decree was not void, and that the bill should be dismissed. That judgment was reversed by the Supreme Court of Colorado. It did not .pass on the question of whether or. not the Wyoming court had jurisdiction of the parties and subject matter.. It held that the Wyoming decree was void, on its face because of an irreconcilable contradiction between the findings and the decree. In its view the finding of the Wyoming court that Milliken’s assignment of May 3, 1924, to Transcontinental of his claims against Meyer was valid, deprived the court of any ground upon which it could predicate a judgment against Meyer, since the only basis for an action by Milliken against Meyer rested upon the claim before its assignment. Where a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is of course open to inquiry. Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Adam v. Saenger, 303 U. S. 59. But if the judgment on its face appears to be a “record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved .by extrinsic evidence, Qr by the record itself.” Adam v. Saenger, supra, at p. 62. In súch case the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles" }, { "docid": "21015568", "title": "", "text": "parts of the record ... at any time of its own initiative.” Fed.R.Civ.P. 60(a). Subsection (b) states that the Rule does not limit a court’s ability “to set aside a judgment for fraud upon the court.” Fed.R.Civ.P. 60(b). Neither subsection applies in this case. The judgment contained no clerical error and the plaintiffs failure to plead the facts necessary to establish diversity jurisdiction was certainly not a fraud upon the court. Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal. Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42, 49-50 (9th Cir.1972). However, that rule only applies to an action pending before the court. It provides no support for extension of this authority to prior, closed cases, in which a court has entered a final judgment. Rule 12(h)(3) does not provide a jurisdictional grant over cases that are not before the court. Thus, the Federal Rules provide no grounds for the district court’s actions in this case; indeed, by identifying precise and limited circumstances in which a court may act upon a judgment sua sponte, they undermine it. Case law further undermines any basis for the district court’s actions. “[T]he social interest in expedition and finality in litigation” weighs strongly against collateral attacks on final judgments. Bell v. Eastman Kodak Co., 214 F.3d 798, 800-01 (7th Cir.2000). Although a judgment may be dismissed on direct review, it may not be attacked for lack of subject matter jurisdiction in a collateral proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377-78, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 83 L.Ed. 104 (1938). Case law makes it clear that the presumption of jurisdiction over the subject matter and over the persons involved in the action, is an inherent characteristic of a judgment. Titus v. Wallick, 306 U.S. 282, 287, 59 S.Ct. 557, 83 L.Ed. 653 (1939); Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct." }, { "docid": "12803987", "title": "", "text": "in this action, are valid. The Florida courts also had jurisdiction over the defendant corporation if the defendant “was engaged in * * * a business or business venture in the State of Florida” within the meaning of the applicable Florida Statute, section 47.16, F.S.A. The plaintiff-appellant contends that by virtue of the following facts the defendant was engaged in a “business venture” in Florida in 1955 when the causes of action originally arose: (1) the defendant owned all the stock of the Ann Lewis Shops of Tampa; (2) both parent and subsidiary had the same individuals as directors and substantially the same individuals as officers; (3) the defendant operated a central buying service for all its subsidiaries; (4) the defendant guaranteed the lease of the Tampa subsidiary; (5) that subsidiary had been organized by the defendant in 1946 for the sole purpose of operating a retail store in Tampa; and (6) the defendant had initiated negotiations for the Tampa lease several months prior to its decision to organize the subsidiary. Of course the duly authenticated record of the judgment of a state is entitled to the same full faith and credit in every court within the United States as it has by law or usage in the courts of the state in which it was rendered. “But in a suit upon the judgment of another state the jurisdiction of the court which rendered it is open to judicial inquiry, Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966, and when the matter of fact or law on which jurisdiction depends was not litigated in the original suit it is a matter to be adjudicated in the suit founded upon the judgment. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897.” Adam v. Saenger, 1938, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649. We recognize that “the burden of undermining the decree of a sister state ‘rests heavily upon the assailant.’ ” Cook v. Cook, 1951, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146, but we find no" }, { "docid": "957255", "title": "", "text": "matter how fortuitous that presence might be. See generally, Bernstine, Shaffer v. Heitner: A Death Warrant for the Transient Rule of In Personam Jurisdiction?, 25 Villanova L.Rev. 38 (1979). A forum state may deem a plaintiff to be subject to a suit on a counterclaim in the forum state if he files a lawsuit there. Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 458-459, 82 L.Ed. 649 (1938) (plaintiff filing a lawsuit is subject to counterclaims in that state “for all purposes for which justice to the defendant requires his presence”). A defendant may, in some jurisdictions, appear specially, not subjecting himself to general service of process, to challenge the assertion of personal jurisdiction over him. See Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). But cf. Anno., Litigant’s participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 62 A.L.R.2d 937 § 4 (1958). Even if a person is not physically present in a state, he will still be deemed to be present for jurisdictional purposes if he is a domiciliary of the state. Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). A state may also assert personal jurisdiction, for any cause of action, over a corporation that conducts continuous and systematic business in the state. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 447-49, 72 S.Ct. 413, 419-20, 96 L.Ed. 485 (1952). The major exception to the presence rule is where a defendant is unfairly enticed into the state and then served with process there. See, e.g., Wyman v. New-house, 93 F.2d 313, 315 (2d Cir. 1937), cert. denied, 303 U.S. 664, 58 S.Ct. 831, 82 L.Ed. 1122 (1938) (declining to give full faith and credit to a default judgment obtained after the defendant was served after being unfairly lured into the state); Sawyer v. LaFlamme, 123 Vt. 229, 185 A.2d 466, 467 (1962) (“a court will refuse to exercise its jurisdiction in favor of" }, { "docid": "14275448", "title": "", "text": "cited case of Thompson v. Whitman, 1874, 85 U.S. (18 Wall.) 457, 469, 21 L.Ed. 897, and has been perpetuated by later cases including Grover & Baker Sewing Machine Co. v. Radcliffe, 1890, 137 U.S. 287, 11 S.Ct. 92, 34 L.Ed. 670; Adam v. Saenger, 1938, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649; Milliken v. Meyer, 1940, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; and Western Union Telegraph Co. v. Pennsylvania, 1961, 368 U.S. 71, 75, 82 S.Ct. 199, 7 L.Ed.2d 139. Thus, there is no full faith and credit requirement that, in the case before us, a Missouri court — and thereby the federal district court in Missouri, see Angel v. Bullington, 1947, 330 U.S. 183, 186-187, 67 S.Ct. 657, 91 L.Ed. 832-must accept the Nebraska judgment as final. The district court here did not violate this principle for it based its decision, not on full faith and credit, but upon res judicata. The question of the conclusiveness of a jurisdictional determination under the res judicata principle is much more complex than the corresponding problem raised by the full faith and credit issue. To begin with, matters of personal jurisdiction and those of subject-matter jurisdiction have not received identical treatment. Thus, as to the former, where a defendant appears in the first action and litigates the question of the court’s jurisdiction over his person, the ensuing judgment is held to be res judicata and not subject to collateral attack in another forum. Chicago Life Ins. Co. v. Cherry, 1917, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966; Baldwin v. Iowa State Traveling Men’s Association, supra, pp. 524-525 of 283 U.S., 51 S.Ct. 517 (special appearance); American Surety Co. v. Baldwin, 1932, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (general appearance); Restatement of the Law of Judgments, § 9; Law of Conflict of Laws (1948 Supp.) § Restatement of the 451(l) On the other hand, the answer, under the decided cases, to the parallel problem of eonclusiveness of a prior determination of subject-matter jurisdiction, as distinguished from jurisdiction over the person, is not" }, { "docid": "22121849", "title": "", "text": "the Court by Justice Stone in Adam v. Saenger, 303 U. S. 59, 62, “If it appears on its face to be a record of a'court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.” The Florida decree is entitled to that presumption. That presumption may of course be overcome by showing, for example, that Mann never was served in Florida nor made an appearance in the case either generally or specially to contest the jurisdictional issues. The Vermont Supreme Court recognized that there were no findings on those issues .in the present record. The Court in referring to the case of Williams v. North Carolina, 325 U. S. 226, said, “It was there held that the question of bona fide domicile was open to attack, notwithstanding the full faith and credit clause when the other spouse' neither had appeared nor been served with process in the state. The findings here do not show either of these criteria.” 116 Vt. 374, 378, 76 A. 2d 593, 595. Yet it is essential that the court know what transpired in Florida before this collateral attack on the Florida decree can be. resolved. For until Florida’s jurisdiction is shownsto be ^vulnerable, Vermont may not relitigate the issue of domi cile on which the Florida decree rests. It was said on argument that the first husband appeared in the Florida proceeding. But the record does not contain the Florid^ decree nor any stipulation concerning it. , ■ We deal only with the presumption, not with, the issues on which the Vermont court made its findings. We also reserve the question, discussed on argument, whether re- _ spondent would now be in a position to attack the Florida. decree collaterally if it were found to be collusive and he participated in the fraud. The judgment is reversed and the cause is remanded to the Supreme Court of Vermont for proceedings not inconsistent with this opinion. Reversed. Mr. Justice Bt:$ton concurs in the result. Mr. Justice Frankfurter, dissenting. Concededly, when" }, { "docid": "19540039", "title": "", "text": "it to be wrong on the merits. On the contrary, \"the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.\" Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 85 L.Ed. 278 (1940). A State is not required, however, to afford full faith and credit to a judgment rendered by a court that \"did not have jurisdiction over the subject matter or the relevant parties.\" Underwriters Nat. Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 705, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982). \"Consequently, before a court is bound by [a] judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court's decree.\" Ibid. That jurisdictional inquiry, however, is a limited one. \"[I]f the judgment on its face appears to be a 'record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.' \" Milliken, supra, at 462, 61 S.Ct. 339 (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649 (1938) ). Those principles resolve this case. Under Georgia law, as relevant here, \"[t]he superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption.\" Ga.Code Ann. § 19-8-2(a) (2015). That provision on its face gave the Georgia Superior Court subject-matter jurisdiction to hear and decide the adoption petition at issue here. The Superior Court resolved that matter by entering a final judgment that made V.L. the legal adoptive parent of the children. Whatever the merits of that judgment, it was within the statutory grant of jurisdiction over \"all matters of adoption.\" Ibid. The Georgia court thus had the \"adjudicatory authority over the subject matter\" required to entitle its judgment to full faith and credit. Baker, supra, at 233, 118 S.Ct. 657. The Alabama Supreme Court reached a different" }, { "docid": "21015569", "title": "", "text": "district court’s actions in this case; indeed, by identifying precise and limited circumstances in which a court may act upon a judgment sua sponte, they undermine it. Case law further undermines any basis for the district court’s actions. “[T]he social interest in expedition and finality in litigation” weighs strongly against collateral attacks on final judgments. Bell v. Eastman Kodak Co., 214 F.3d 798, 800-01 (7th Cir.2000). Although a judgment may be dismissed on direct review, it may not be attacked for lack of subject matter jurisdiction in a collateral proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377-78, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 83 L.Ed. 104 (1938). Case law makes it clear that the presumption of jurisdiction over the subject matter and over the persons involved in the action, is an inherent characteristic of a judgment. Titus v. Wallick, 306 U.S. 282, 287, 59 S.Ct. 557, 83 L.Ed. 653 (1939); Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146 (1951) (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649 (1938)). The bar on collateral attacks to final judgments remains in force even when defective allegations of diversity motivate the collateral attack. As former Chief Judge Walter Pope noted: Thus it may properly by said that existence of diversity of citizenship or of the requisite amount in controversy, is a prerequisite to the jurisdiction of a federal court; but it is also clear that if the court in question determines that these requirements are satisfied, and that it has jurisdiction, it is certain that such a determination, even if demonstrably wrong, is not a nullity or a truly void judgment, for it cannot be questioned collaterally. Yanow v. Weyerhaeuser S.S. Co., 274 F.2d 274, 279(9th Cir.1958). As Judge Pope noted, an important distinction exists “between cases where certain facts are strictly jurisdictional in the sense that without them the act of the court is a mere nullity, and those cases in which the facts are only" }, { "docid": "22800050", "title": "", "text": "to give way, such ‘is part of the price of our federal system.’ ” This constitutional purpose promotes unification, not centralization. It leaves each state with power over its own courts but binds litigants, wherever they may be in the Nation, by prior orders of other courts with jurisdiction. “One trial of an issue is enough. ‘The principles of res judicata apply to questions of jurisdiction as well as to other issues/ as well to jurisdiction of the subject matter as of the parties.” The federal purpose of the clause makes this Court, for both state and federal courts, the “final arbiter when the question is raised as to what is a permissible limitation on the full faith and credit clause.” In the exercise of this responsibility we have recently restated the controlling effect of the clause on state proceedings subsequent to divorce decrees in other states. In Davis v. Davis, 305 U. S. 32, we held that a Virginia decree of divorce, granted a husband who had acquired local domicile after he had obtained a decree of separation in the District of Columbia, the marital domicile, must be given effect in the District. The wife had entered her appearance in the Virginia court and was held bound by its findings of jurisdiction, after contest. In two cases, Williams I and II, 317 U. S. 287, and 325 U. S. 226, we held that domicile of one party to a divorce creates an adequate relationship with the state to justify its exercise of power over the marital relation, 317 U. S. at 298; 325 U. S. at 235. The later Williams case left a sister state free to determine whether there was domicile of one party in an “ex parte” proceeding so as to give the court jurisdiction to enter a decree. 325 U. S. at 230, n. 6, 237, dissent 277; Esenwein v. Commonwealth, 325 U. S. 279, 281. Cf. Rice v. Rice, 336 U. S. 674. Three years later a question undecided in Williams II was answered. In Sherrer v. Sherrer, 334 U. S. 343, a Florida divorce," }, { "docid": "6227539", "title": "", "text": "Appeals of the District of Columbia affirmed the district court in holding the Florida divorce decree ineffectual to defeat the wife’s right to separate maintenance, because of appellant’s representation to the Florida court that when the divorce action was commenced he was a bona fide resident of Florida, when in fact he was not, so that the Florida court lacked jurisdiction over the subject matter and its decree was therefore void. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, Id., 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. After the District of Columbia judgment became final on appeal, and when the payments due under it aggregated $4125.00, it was registered in the Southern District of Florida pursuant to 28 U.S.C.A. § 1963. This registration, and the ancillary garnishment issued thereon, are challenged by the motion to quash. It was not error to deny the motion. The judgment in question is not in any sense a divorce decree, but one “for the recovery of money”, as contemplated by the statute. The district court of the District of Columbia is clothed with jurisdiction over actions for separate maintenance arising in the District of Columbia. Act of March 31, 1901, 31 Stat. at Large 1346, ch. 854, sec. 980. Its judgment for separate maintenance in this instance stands here properly authenticated and unchallenged as to jurisdiction. It therefore qualifies for registration in the Florida district pursuant to 28 U.S.C.A. § 1963. Registration of the District of Columbia judgment in Florida is purely a ministerial step in its enforcement. It confers upon the Florida court no power over the judgment itself. Whether or not the district court for the District of Columbia properly denied full faith and credit to the Florida divorce decree is not the concern of the Florida district court. That question has been determined by the district court for the District of Columbia, affirmed by the Court of Appeals, and is not subject to review by the Florida district court in a proceeding of this nature. As the judgment" }, { "docid": "19540040", "title": "", "text": "over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.' \" Milliken, supra, at 462, 61 S.Ct. 339 (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649 (1938) ). Those principles resolve this case. Under Georgia law, as relevant here, \"[t]he superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption.\" Ga.Code Ann. § 19-8-2(a) (2015). That provision on its face gave the Georgia Superior Court subject-matter jurisdiction to hear and decide the adoption petition at issue here. The Superior Court resolved that matter by entering a final judgment that made V.L. the legal adoptive parent of the children. Whatever the merits of that judgment, it was within the statutory grant of jurisdiction over \"all matters of adoption.\" Ibid. The Georgia court thus had the \"adjudicatory authority over the subject matter\" required to entitle its judgment to full faith and credit. Baker, supra, at 233, 118 S.Ct. 657. The Alabama Supreme Court reached a different result by relying on Ga.Code Ann. § 19-8-5(a). That statute states (as relevant here) that \"a child who has any living parent or guardian may be adopted by a third party ... only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.\" The Alabama Supreme Court concluded that this provision prohibited the Georgia Superior Court from allowing V.L. to adopt the children while also allowing E.L. to keep her existing parental rights. It further concluded that this provision went not to the merits but to the Georgia court's subject-matter jurisdiction. In reaching that crucial second conclusion, the Alabama Supreme Court seems to have relied solely on the fact that the right to adoption under Georgia law is purely statutory, and \" '[t]he requirements of Georgia's adoptions statutes are mandatory and must be strictly construed in favor of the natural parents.' \" App. to Pet. for Cert. 23a-24a (quoting In re Marks, 300 Ga.App. 239, 243, 684 S.E.2d 364, 367 (2009)" }, { "docid": "14275457", "title": "", "text": "sometimes open to collateral inquiry, it remained ■unclear as to when such an inquiry would be entertained or as to what considerations would control that decision. This uncertainty was noted in the 1934 original edition of the Restatement of the Law of Conflict of Laws. After stating the rule, in § 451, that a party appearing in a proceeding will be precluded from questioning the jurisdiction of the court over his person in any subsequent proceedings in that or any other state if the court in which he appeared purported to render a judgment against him, the American Law Institute by appended caveat expressly withheld comment as to subject-matter jurisdiction. Subsequent Supreme Court cases, however, decided within the following seven years, provided additional guide lines. (d) Next was the divorce case of Davis v. Davis, 1938, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26. The husband sought a divorce in Virginia. His wife appeared there specially to contest Virginia’s jurisdiction on the ground that their marriage domicile was in the District of Columbia. The Virginia court held that it had jurisdiction of the subject-matter because, under Virginia law, the husband had established his residence in Virginia for the required length of time. The divorce was granted. The husband then sought enforcement of this decree in the District. The wife defended on the ground that the Virginia court lacked jurisdiction. The Supreme Court held that her voluntary appearance and litigation in Virginia precluded the collateral attack. The Court, in support of its conclusion, cited only Baldwin v. Iowa State Traveling Men’s Association, supra, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244, which had to do with jurisdiction of the person. The Davis result is consistently adhered to by the Supreme Court in divorce cases and the challenges therein to subject-matter jurisdiction. See, for example, Cook v. Cook, 1951, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146, and cases cited. (e) Then followed, within eighteen months, three non-divorce cases and a supporting dictum in a fourth case to the effect that res judicata was applicable, under the facts of" }, { "docid": "23489227", "title": "", "text": "when one court, adjudicating an in rem proceeding in which it must assert control over the res in order to have jurisdiction, enjoins another court seeking control over the same res. 28 U.S.C. § 2283; see Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850 (1935). Here, however, the federal court proceeding was in personam, and its jurisdiction was based on the diversity of citizenship of the parties, not on its control of the res — the 73-acre tract of land in Tampa, Florida. Since the court did not need to issue the TRO to protect its jurisdiction, see United States v. Klein, 303 U.S. 276, 58 S.Ct. 536, 82 L.Ed. 840 (1938), the TRO should not have issued and the contempt findings based upon it must be vacated. Reversed. . After the court’s order liad issued plaintiff began a contempt proceeding by serving an order to show cause why Kline and his wife .Teanne Kline should not be held in contempt for failure to comply with the court’s judgment. Kline had purported to assign one-half of his interest in the land to Mrs. Kline in August 3969. Kline appeared in the proceeding and executed a quitclaim deed suggested by the court and plaintiff withdrew her application for a contempt order against him. Mrs. Kline, who was never a party to this proceeding, appeared specially and presented the defense that the district court lacked jurisdiction over her in both the plenary action and the contempt proceeding. The court held that it did have jurisdiction and a final judgment of contempt was entered against her. This court reversed, holding that Mrs. Kline was neither a “nominee\" of Kline nor in “active concert or participation with him,” see Rule 65(d), F.R.Civ.P., and that the district court lacked jurisdiction over her. Heyman v. Kline, 444 F.2d 65 (2d Cir. 1971). . There is considerable doubt that the plaintiff made an adequate showing under Buie 65(b) of the Federal Buies of Civil Procedure to justify the granting of the TBO without notice. The only allegation" }, { "docid": "6227538", "title": "", "text": "STRUM, Circuit Judge. This appeal is from an order “dismissing” appellant’s motion to quash the registration in the Southern District of Florida, at Miami, of a judgment of the United States District Court for the District of Columbia, and to also quash an ancillary garnishment proceeding in the Florida district based upon that judgment. In 1941, the United States District Court for the District of Columbia awarded appellee, Mary M. Gullet, separate maintenance pendente lite from her husband, John Sherman Gullet, appellant here. That court later refused to revoke the order for temporary maintenance, and on November 17, 1947, made the allowance permanent, notwithstanding an intervening decree of a Florida state court entered in April, 1944 purporting to grant appellant an absolute decree of divorce from appellee. Appellant appeared (as defendant) in the District of Columbia suit and defended it through two trials and two appeals, until judgment finally went against him. Gullet v. Gullet, 80 U.S.App.D.C. 73, 149 F.2d 17; Id., 85 U.S.App.D.C. 12, 174 F.2d 531. On the second appeal, the Court of Appeals of the District of Columbia affirmed the district court in holding the Florida divorce decree ineffectual to defeat the wife’s right to separate maintenance, because of appellant’s representation to the Florida court that when the divorce action was commenced he was a bona fide resident of Florida, when in fact he was not, so that the Florida court lacked jurisdiction over the subject matter and its decree was therefore void. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, Id., 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. After the District of Columbia judgment became final on appeal, and when the payments due under it aggregated $4125.00, it was registered in the Southern District of Florida pursuant to 28 U.S.C.A. § 1963. This registration, and the ancillary garnishment issued thereon, are challenged by the motion to quash. It was not error to deny the motion. The judgment in question is not in any sense a divorce decree, but one “for the recovery of" }, { "docid": "16486129", "title": "", "text": "an order declaring the foreign default judgment void on the ground that appellees had not been subject to the personal jurisdiction of the Georgia court. The court below granted the motion, and vacated the default judgment. Covington subsequently brought this appeal. I. Power Of The New York Court To Determine The Validity Of The Judgment Of The Georgia Court. Before discussing the jurisdiction of the Georgia court, we must first consider the power of the district court for the Eastern District of New York to pass upon the validity of a sister court’s judgment, and more particularly, the propriety of attacking that judgment in the court of registration by way of a motion under Rule 60(b)(4). A judgment entered against parties not subject to the personal jurisdiction of the rendering court is a nullity. When, in an enforcement proceeding, the validity of the judgment is questioned on this ground, the enforcing court has the inherent power to void the judgment, whether the judgment was issued by a tribunal within the enforcing court’s domain or by a court of a foreign jurisdiction, unless inquiry into the matter is barred by the principles of res judicata. Baldwin v. Iowa State Traveling Men’s Assoc., 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931). While the original court’s jurisdiction is presumptively valid, if the issue of jurisdiction has not previously been litigated it may be raised in the enforcing court. Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938). Such collateral attacks go by different names, depending upon the precise circumstances in which they arise. When purely defensive in nature and invoked in opposition to enforcement proceedings the collateral attack may be given no name at all. See, e. g., Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 154 (5th Cir. 1974) (“the defendant may defeat subsequent enforcement in another forum by demonstrating that the judgment issued from a court lacking personal jurisdiction.”); see also Radiation Technology, Inc. v. Southern Rad, Inc., 68 F.R.D. 296 (N.D. Ga.1975). In other situations, relief from a" }, { "docid": "14275458", "title": "", "text": "Virginia court held that it had jurisdiction of the subject-matter because, under Virginia law, the husband had established his residence in Virginia for the required length of time. The divorce was granted. The husband then sought enforcement of this decree in the District. The wife defended on the ground that the Virginia court lacked jurisdiction. The Supreme Court held that her voluntary appearance and litigation in Virginia precluded the collateral attack. The Court, in support of its conclusion, cited only Baldwin v. Iowa State Traveling Men’s Association, supra, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244, which had to do with jurisdiction of the person. The Davis result is consistently adhered to by the Supreme Court in divorce cases and the challenges therein to subject-matter jurisdiction. See, for example, Cook v. Cook, 1951, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146, and cases cited. (e) Then followed, within eighteen months, three non-divorce cases and a supporting dictum in a fourth case to the effect that res judicata was applicable, under the facts of those cases, to the issue of subject-matter jurisdiction. The first was Stoll v. Gottlieb, 1938, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, decided two weeks after Davis. There, in a bankruptcy situation, the Court said, pp. 171-173, p. 137 of 59 S.Ct.: “Where adversary parties appear, a court must have the power to determine whether or not it has jurisdiction of the person of a litigant, or whether its geographical jurisdiction covers the place of the occurrence under consideration. Every court in rendering a judgment, tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter. * * * “ * * * After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first. “That a former judgment in a state court is conclusive between the parties" }, { "docid": "12803988", "title": "", "text": "authenticated record of the judgment of a state is entitled to the same full faith and credit in every court within the United States as it has by law or usage in the courts of the state in which it was rendered. “But in a suit upon the judgment of another state the jurisdiction of the court which rendered it is open to judicial inquiry, Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966, and when the matter of fact or law on which jurisdiction depends was not litigated in the original suit it is a matter to be adjudicated in the suit founded upon the judgment. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897.” Adam v. Saenger, 1938, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649. We recognize that “the burden of undermining the decree of a sister state ‘rests heavily upon the assailant.’ ” Cook v. Cook, 1951, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146, but we find no merit in the contention that this defendant was subject to process within Florida. Therefore we affirm the court below in its holding that the Florida court lacked jurisdiction over this defendant to render the three judgments against it here sued upon. I In the leading case of Cannon Mfg. Co. v. Cudahy Packing, 1925, 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634, the Supreme Court held that a ‘foreign corporation that solicited customers and sold and distributed its products in North Carolina through a wholly-owned subsidiary was not amenable to suit in a forum of that state since the separate identity of the two corporations was maintained and the activities within the state were actually carried on by the subsidiary. The Cannon rule has been followed; and it is generally held that where the parent and the subsidiary, for example, maintain separate bocks and bank accounts, submit separate tax returns, file separate financial statements, and meticulously charge each other for any services rendered, the corporations will be found to be separate entities for the" } ]

[ { "docid": "19651968", "title": "", "text": "existed at the outset. One must, of course, know at the start the character of the interest at stake in order to determine then what process, if any, is constitutionally due. “All’s well that ends well” cannot be the measure here. The Court describes a category of liberty interest that is something less than the one the Due Process Clause itself shields, something more than anything a prison code provides. The State may create a liberty interest, the Court tells us, when “atypical and significant hardship [would be borne by] the inmate in relation to the ordinary incidents of prison life.” Ante, at 484; see ante, at 486. What design lies beneath these key words? The Court ventures no examples, leaving consumers of the Court’s work at sea, unable to fathom what would constitute an “atypical, significant deprivation,” ibid., and yet not trigger protection under the Due Process Clause directly. Justice Breyer, with whom Justice Souter joins, dissenting. The specific question in this case is whether a particular punishment that, among other things, segregates an inmate from the general prison population for violating a disciplinary rule deprives the inmate of “liberty” within the terms of the Fourteenth Amendment’s Due Process Clause. The majority, asking whether that punishment “imposes atypical and significant hardship on the inmate in relation to the ordi nary incidents of prison life,” ante, at 484, concludes that it does not do so. The majority’s reasoning, however, particularly when read in light of this Court’s precedents, seems to me to lead to the opposite conclusion. And, for that reason, I dissent. I The respondent, DeMont Conner, is an inmate at Halawa Correctional Facility, a maximum security prison in Hawaii. In August 1987, as a result of an altercation with a guard, prison authorities charged Conner with violating several prison disciplinary regulations, including one that prohibited “physical interference ... resulting in the obstruction ... of the performance of a correctional function. ...” Haw. Admin. Rule §17-201-7 (14) (1983). The prison’s “adjustment committee” found Conner “guilty” and imposed a punishment of 30 days of “disciplinary segregation.” Eventually, but after Conner" } ]

[ { "docid": "11262437", "title": "", "text": "case, Robert Lile, received a reduction in his privilege level and a transfer to a maximum security prison for his refusal to divulge his sexual history as part of the SATP. Id. at 1182. The panel concluded that the imposition of these penalties for a refusal to provide potentially self-incriminating statements constituted “impermissible compulsion.” Id. at 1189. A divided Supreme Court reversed. Four Justices stated that the question of whether the KDOC compelled self-incriminating statements from SATP participants could be answered by looking to the standard enunciated by the Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). McKune v. Lile, — U.S. -, -, 122 S.Ct. 2017, 2026-27, 153 L.Ed.2d 47 (2002). In Sandin, the Supreme Court held that challenged prison conditions could not give rise to a due process violation unless those conditions constitute “atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life.” Id. at 484. Based on Sandin’s “useful instruction,” McKune, - U.S. at-, 122 S.Ct. at 2027, the plurality concluded that the penalties imposed against Lile were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (no Fifth Amendment violation where inmate’s silence could be used against him in a prison disciplinary proceeding); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (no Fifth Amendment violation where death row inmate was forced to choose between incriminating himself at clemency interview and having adverse inferences drawn from his silence); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (defendant’s fear of returning to prison if he remained silent did not result in a compelled confession in violation of the Fifth Amendment). As such, and in the context of the rehabilitative purposes of the SATP, the plurality concluded that the KDOC did not violate Lile’s Fifth Amendment right against self-incrimination. McKune, — U.S. at -, 122" }, { "docid": "23234181", "title": "", "text": "However, she did agree that the consequences of the plaintiff prisoner’s refusal to incriminate himself were not “so great as to constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination.” Id. at 49, 122 S.Ct. 2017 (O’Connor, J., concurring). Thus, she concurred in the judgment. As we noted in Searcy, “[b]ecause Justice O’Connor based her conclusion on the narrower ground that the [Department of Corrections’] policy was not compulsion under the Fifth Amendment, we view her concurrence as the holding of the Court in McKune.” 299 F.3d at 1225; see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”). Accordingly, the question we must resolve is whether, under the standard applied by Justice O’Connor in her concurring opinion, consequences of Mr. Gwinn’s refusal to participate in the treatment program for sexual offenders were “so great as to constitute compulsion,” McKune, 536 U.S. at 49, 122 S.Ct. 2017 (O’Connor, J., concurring), for purposes of the Fifth Amendment privilege against self-incrimination. In this regard, we note that Mr. Gwinn’s refusal to participate in the treatment program did result in an additional consequence not suffered by the plaintiff prisoner in McKune: the loss of opportunity to accrue good time credits at an increased rate. Thus, we must determine whether this additional adverse consequences is “serious enough to compel Mr. Gwinn to be a witness against himself.” 536 U.S. at 50, 122 S.Ct. 2017 (O’Connor, J., concurring). This circuit’s opinion in Searcy resolves that issue. There, we held that the withholding of good time credits to a Kansas prisoner who refused to participate in a treatment program did not constitute compulsion. We reasoned that the award of good time credits under the Kansas regulation was discretionary and that, as a result, “foreclosing [the plaintiff] from the mere opportunity to earn good time credits is not a new penalty but only the withholding of a benefit that the [Kansas" }, { "docid": "23234178", "title": "", "text": "court should determine: (1) whether Mr. Gwinn was required to register as a sexual offender upon his release from prison; (2) if Mr. Gwinn was required to register, what provisions of Colorado law were invoked to justify the registration; (3) what specific obligations any such registration imposed upon Mr. Gwinn. The district court should then determine which of these defendants, if any, were responsible for this registration. If any of the defendants were so responsible, the district court should then determine whether the registration requirements, if any, were sufficient to “significantly alter[ ][his] status as a matter of state law,” see Paul, 424 U.S. at 710-11, 96 S.Ct. 1155, such that they implicated a liberty interest. If such a liberty interest was implicated, the district court should then determine whether Mr. Gwinn was afforded the procedural protections required by the Due Process Clause in these circumstances. B. Fifth Amendment Compulsion Claim Mr. Gwinn contends that CDOC officials violated Ms Fifth Amendment rights by punishing him for refusing to comply with one of the requirements of the treatment program for sex offenders- — that he admit that he committed a sex offense. He contends that because he refused to participate in the treatment program, he was ineligible to earn good time credits at the higher rate available to participating prisoners. The denial of this benefit, Mr. Gwinn maintains, constituted impermissible compulsion of incriminating testimony. Mr. Gwinn’s argument is controlled by the Supreme Court’s decision in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and this circuit’s subsequent interpretation of that decision in Searcy v. Simmons, 299 F.3d 1220 (10th Cir.2002). In McKune, a divided Supreme Court reversed a decision of this court applying the Fifth Amendment’s bar on compelling incriminating testimony. This court had concluded that a Kansas policy restricting an inmate’s privileges and transferring him to a maximum security prison after he refused to disclose his sexual history (as required by a sex offender treatment program) constituted impermissible compulsion. See Lile v. McKune, 224 F.3d 1175 (10th Cir.2000). Four justices concluded that the standard set" }, { "docid": "23018076", "title": "", "text": "requirements of the treatment program — that he admit that he committed a sex offense. He points to the denial of visitation privileges and the denial of the opportunity to earn good time credits at the higher rate available to other prisoners. He maintains that these actions constituted coercion in response to his refusal to incriminate himself. In McKune, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47, a divided Supreme Court reversed a decision of this court applying the Fifth Amendment’s bar on compelling incriminating testimony. This court had concluded that a Kansas policy restricting an inmate’s privileges and transferring him to a maximum security prison after he refused to disclose his sexual history (as required by a sex offender treatment program) constituted impermissible compulsion. See Lile v. McKune, 224 F.3d 1175 (10th Cir.2000). Four justices concluded that the standard set forth in Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), should control in determining whether the imposition of these consequences constituted impermissible compulsion: if the consequences constituted “atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life” then the program would violate the Fifth Amendment. See McKune, 536 U.S. at 29-48, 122 S.Ct. 2017. Applying the Sandin standard to the facts before it, the plurality concluded that the penalties imposed against the prisoner were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See McKune, 536 U.S. at 42-45, 122 S.Ct. 2017. Accordingly, the plurality concluded that the Kansas program did not violate the plaintiff prisoner’s Fifth Amendment right against self-incrimination. Id. at 48, 122 S.Ct. 2017. Because she disagreed with the plurality’s application of Sandin’s “atypical and significant hardship” standard, Justice O’Connor did not join in the plurality opinion in McKune. However, she did agree that the consequences of the plaintiff prisoner’s refusal to incriminate himself were not “so great as to constitute compulsion for the- purposes of the Fifth Amendment privilege against self-incrimination.” Id. at 49-50, 122 S.Ct. 2017 (O’Connor, J., concurring)." }, { "docid": "23234183", "title": "", "text": "Department of Corrections] is under no obligation to give.” 299 F.3d at 1226. Thus, the plaintiff prisoner “was left with a choice: take advantage of a benefit that the [Department of Corrections] provided or turn down that benefit in order to avoid providing what he feared, perhaps legitimately, would be self-incriminating statements.” Id. Such a choice did not constitute compulsion. Searcy is applicable here. Like the Kansas Department of Corrections, the CDOC retains discretion in awarding good time credits. See Col.Rev.Stat. § 17-22.5-405(1) (stating that “[e]arned time, not to exceed ten days for each month of incarceration or parole, may be deducted from the inmate’s sentence”) (emphasis added); Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir.1994) (noting the discretionary language in the Colorado good time credit statute). Under Colorado law, parole decisions are similarly discretionary. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo.1990). Thus, Mr. Gwinn, like Mr. Searcy, was faced with a choice between the opportunity to earn credits at the higher rate and retain favorable parole status or declining that opportunity by refusing to participate in the treatment program and thereby avoiding the requirement that he admit to committing a sex offense. Accordingly, the pressure imposed upon Mr. Gwinn did not rise to a level where it is likely to compel a person to be a witness against himself. See Searcy, 299 F.3d at 1227 (applying McKune, 536 U.S. at 49, 122 S.Ct. 2017) (O’Connor, J., concurring). To be sure, as Mr. Gwinn further observes, there is another difference between McKune and Searcy and the instant case: both of the defendants in those cases were convicted of sexual offenses while Mr. Gwinn was not. Mr. Gwinn contends that this fact establishes that the CDOC imper-missibly sought to compel incriminating testimony. We disagree with Mr. Gwinn’s reading of those cases. Under Justice O’Connor’s opinion in McKune and our decision in Searcy, the Fifth Amendment compulsion analysis focuses on the consequences imposed upon the inmate who refuses to participate in the sexual offender treatment program. See McKune, 536 U.S. at 49-50, 122 S.Ct. 2017 (O’Connor, J., concurring) (noting" }, { "docid": "22996956", "title": "", "text": "real possibility of incrimination. B. Compulsion The second prong of the self-incrimination inquiry asks whether the government has sought to “impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Cunningham, 431 U.S. at 805, 97 S.Ct. 2132. We are mindful that an individual choosing silence does not get a free pass against all possible repercussions. See, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (a state clemency board may draw “adverse inferences” from an inmate’s failure to testify on his own behalf at a clemency hearing). Only “some penalties are so great as to ‘compel’ such testimony, while others do not rise to that level.” McKune, 536 U.S. at 49, 122 S.Ct. 2017 (O'Connor, J., concurring). The Supreme Court’s decision in McKune requires us to conclude that this level has been breached in Antelope’s case. In McKune, a plurality of four justices concluded that the penalties faced by the inmate in that case, Robert Lile, for refusing to make disclosures required under Kansas’s Sexual Abuse Treatment Program (“SATP”) did not amount to compulsion under the Fifth Amendment. Id. at 29, 122 S.Ct. 2017. Lile brought a § 1983 action against prison officials, alleging that they had violated his Fifth Amendment privilege against self-incrimination by reducing his privileges and transferring him from medium-security housing to maximum-security housing as a result of his refusal to disclose his sexual history as required by SATP. The plurality rejected Lile’s argument that his case was controlled by “the so-called penalty cases” like Garrity v. New Jersey, 385 U.S. 493, 497-98, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (striking down state statute forcing public employees “either to forfeit their jobs or to incriminate themselves”), and Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (“The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege.”), where lesser penalties involving the potential loss of economic" }, { "docid": "23098422", "title": "", "text": "participate in treatment, his privilege status would be reduced from Level III to Level I, resulting in the curtailment of his visitation rights, earnings, work opportunities, ability to send money to his family, and other privileges. Id. at 31, 122 S.Ct. 2017. Lile would also be transferred to a maximum-security prison where his movement would be limited, where he would be placed in a four-person (instead of a two-person) cell, and where he would be surrounded by more dangerous criminals. Id. Lile filed a Fifth Amendment challenge to the compulsory sex offender therapy based on the fact that incriminating statements made during counseling were not privileged. Lile also argued that the purported punishments he faced if he refused to participate were sufficiently coercive as to constitute a violation of the right against self-incrimination. A plurality of the Supreme Court rejected this argument. Before finding it necessary to address the issues of privilege and immunity that Lile asserted rendered his participation in the sex offender therapy program a Fifth Amendment violation, the Court instructed that compulsion was the linchpin, since the initial and “central question [was] whether the State’s program, and the consequences for non-participation in it, combine to create a compulsion that eneumber[ed] [the prisoner’s Fifth Amendment rights.]” Id. at 35, 122 S.Ct. 2017. Referencing Sandin, the plurality held that a “prison clinical rehabilitation program ... does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” Id. at 37-38, 122 S.Ct. 2017. Turning to Lile’s case, the Court noted that refusing to participate in sexual abuse treatment did not extend his term of incarceration, or affect his eligibility for good time credits or parole. Id. at 38, 122 S.Ct. 2017. The Court also reasoned that the move to a maximum-security prison was not intended to punish Lile, but to make beds available to other inmates willing to participate in the program. Id. Finally, the plurality defined the consequences of Lile’s" }, { "docid": "11262438", "title": "", "text": "plurality concluded that the penalties imposed against Lile were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (no Fifth Amendment violation where inmate’s silence could be used against him in a prison disciplinary proceeding); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (no Fifth Amendment violation where death row inmate was forced to choose between incriminating himself at clemency interview and having adverse inferences drawn from his silence); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (defendant’s fear of returning to prison if he remained silent did not result in a compelled confession in violation of the Fifth Amendment). As such, and in the context of the rehabilitative purposes of the SATP, the plurality concluded that the KDOC did not violate Lile’s Fifth Amendment right against self-incrimination. McKune, — U.S. at -, 122 S.Ct. at 2032. Justice O’Connor, though not joining the plurality, did concur in the judgment. AI- though Justice O’Connor did not agree with the plurality that a finding of compulsion under the Fifth Amendment should be measured by reference to Sandin’s '“atypical and significant hardship” standard, she did agree that the consequences of Lile’s refusal to incriminate himself were not “so great as to constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination.” Id. at 2032-33 (O’Connor, J., concurring). ■' Because Justice O’Connor based her conclusion on the narrower ground that the KDOC’s policy was not compulsion under the Fifth Amendment, we view her concurrence as the holding of the Court in McKune. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....”) (internal quotation omitted). Had the only consequences Mr. Searcy suffered for his refusal to provide" }, { "docid": "18382116", "title": "", "text": "relief. Alternatively, even if the Supreme Court were to direct that Heck does not bar an action when habeas corpus relief is unavailable, we conclude that the prison officials did not violate Entzi’s right against self-incrimination by withholding sentence-reduction credits. Applying the Supreme Court’s decision in McKune, the Tenth Circuit has concluded that the loss of good time credits does not amount to “compulsion” that violates the Fifth Amendment, even where an inmate was required to discuss uncharged sex offenses. Searcy v. Simmons, 299 F.3d 1220, 1222, 1227 (10th Cir.2002). Entzi was directed to participate in sex offender treatment and to discuss only his offenses of conviction, after a fair criminal process, as part of a legitimate rehabilitation program that serves an important social purpose. McKune, 536 U.S. at 41, 122 S.Ct. 2017 (plurality opinion). The North Dakota Department of Corrections has the exclusive discretion to determine whether an offender should be credited with a performance-based sentence reduction. N.D. Cent.Code 12-54.1-01; State v. Trieb, 516 N.W.2d 287, 292 (N.D.1994). The loss of an opportunity for such a discretionary sentence-reduction credit is not among the consequences for noncompliance that go “beyond the criminal process and appear, starkly, as government attempts to compel testimony.” McKune, 536 U.S. at 53, 122 S.Ct. 2017 (O’Connor, J., concurring). Consistent with Searcy, we therefore hold alternatively that North Dakota’s conditioning of sentence-reduction credits on participation in the sex offender treatment program did not contravene the self-incrimination clause of the Fifth Amendment. Finally, as with Entzi’s claim against Bohn, we conclude that no damages remedy under § 1983 would be available to Entzi, even assuming the denial of sentence-reduction credits were deemed to be “compulsion” for purposes of the Fifth Amendment. No statements compelled from Entzi have been introduced in evidence in a criminal case, and there is no “powerful showing” that exclusion of evidence or injunctive relief with respect to the denial of credits would be an inadequate remedy for any violation that might be discerned in the operation of North Dakota’s program for performance-based sentence reductions. See Chavez, 538 U.S. at 767, 123 S.Ct. 1994" }, { "docid": "23018075", "title": "", "text": "draconian restrictions — such as closely monitored, noncontact visitation. Had Mr. Wirsehing offered evidence as to the feasibility and minimum institutional effect of a less restrictive visitation policy, this would be a closer case. Nevertheless, we are aware that the treatment of sex offenders, like many other aspects of prison administration, presents substantial difficulties. See McKune v. Lile, 536 U.S. 24, 33-34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (discussing the high rates of recidivism among sex offenders and characteristics of effective treatment programs). On this record we conclude that, in refusing to allow visits between a convicted sex offender who refused to comply with the requirements of the treatment program and his child, the defendants did not violate Mr. Wirsching’s First and Fourteenth Amendment rights. Accordingly, the district court properly granted summary judgment in favor of those officials and against Mr. Wirsehing on his damages claims. D. Fifth Amendment Compulsion Claim Mr. Wirsehing also contends that CDOC officials violated his Fifth Amendment rights by punishing him for refusing to comply with one of the requirements of the treatment program — that he admit that he committed a sex offense. He points to the denial of visitation privileges and the denial of the opportunity to earn good time credits at the higher rate available to other prisoners. He maintains that these actions constituted coercion in response to his refusal to incriminate himself. In McKune, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47, a divided Supreme Court reversed a decision of this court applying the Fifth Amendment’s bar on compelling incriminating testimony. This court had concluded that a Kansas policy restricting an inmate’s privileges and transferring him to a maximum security prison after he refused to disclose his sexual history (as required by a sex offender treatment program) constituted impermissible compulsion. See Lile v. McKune, 224 F.3d 1175 (10th Cir.2000). Four justices concluded that the standard set forth in Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), should control in determining whether the imposition of these consequences constituted impermissible compulsion: if the consequences constituted" }, { "docid": "11262436", "title": "", "text": "Due Process Clause of the Fourteenth Amendment when they sent his property from the HCF without his consent. On cross-motions for summary judgment, the district court rejected all of Mr. Searcy’s claims of constitutional violations and granted the Defendants’ motion for summary judgment. Discussion In this appeal, Mr. Searcy challenges the district court’s grant of summary judgment to the Defendants on his Self-Incrimination, Free Exercise of Religion, and Due Process claims. We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.1999). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. Self-Incrimination In Lile v. McKune, 224 F.3d 1175 (10th Cir.2000), the panel concluded that the KDOC’s policy of imposing penalties for an inmate’s refusal to participate in the SATP for fear of self-incrimination violated the Fifth Amendment. The inmate in that case, Robert Lile, received a reduction in his privilege level and a transfer to a maximum security prison for his refusal to divulge his sexual history as part of the SATP. Id. at 1182. The panel concluded that the imposition of these penalties for a refusal to provide potentially self-incriminating statements constituted “impermissible compulsion.” Id. at 1189. A divided Supreme Court reversed. Four Justices stated that the question of whether the KDOC compelled self-incriminating statements from SATP participants could be answered by looking to the standard enunciated by the Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). McKune v. Lile, — U.S. -, -, 122 S.Ct. 2017, 2026-27, 153 L.Ed.2d 47 (2002). In Sandin, the Supreme Court held that challenged prison conditions could not give rise to a due process violation unless those conditions constitute “atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life.” Id. at 484. Based on Sandin’s “useful instruction,” McKune, - U.S. at-, 122 S.Ct. at 2027, the" }, { "docid": "23234180", "title": "", "text": "forth in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), should control in determining whether the imposition of these consequences constituted impermissible compulsion: if the consequences constituted “atypical and significant hardship^] on [inmates] in relation to the ordinary incidents of prison life” then the program would violate the Fifth Amendment. McKune, 536 U.S. at 25, 122 S.Ct. 2017 (citing Sandin, 515 U.S. at 484, 115 S.Ct. 2293). Applying that Sandin standard to the facts before it, the plurality concluded that the penalties imposed against the prisoner were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See McKune, 536 U.S. at 41-45, 122 S.Ct. 2017. Accordingly, the plurality concluded that the Kansas program did not violate the plaintiff prisoner’s Fifth Amendment right against self-incrimination. McKune, 536 U.S. at 48, 122 S.Ct. 2017. Because she disagreed with the plurality’s application of Sandin’s “atypical and significant hardship” standard, Justice O’Connor did not join in the plurality opinion in McKune. However, she did agree that the consequences of the plaintiff prisoner’s refusal to incriminate himself were not “so great as to constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination.” Id. at 49, 122 S.Ct. 2017 (O’Connor, J., concurring). Thus, she concurred in the judgment. As we noted in Searcy, “[b]ecause Justice O’Connor based her conclusion on the narrower ground that the [Department of Corrections’] policy was not compulsion under the Fifth Amendment, we view her concurrence as the holding of the Court in McKune.” 299 F.3d at 1225; see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”). Accordingly, the question we must resolve is whether, under the standard applied by Justice O’Connor in her concurring opinion, consequences of Mr. Gwinn’s refusal to participate in the treatment program for sexual offenders were “so great as to constitute compulsion,”" }, { "docid": "23018077", "title": "", "text": "“atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life” then the program would violate the Fifth Amendment. See McKune, 536 U.S. at 29-48, 122 S.Ct. 2017. Applying the Sandin standard to the facts before it, the plurality concluded that the penalties imposed against the prisoner were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See McKune, 536 U.S. at 42-45, 122 S.Ct. 2017. Accordingly, the plurality concluded that the Kansas program did not violate the plaintiff prisoner’s Fifth Amendment right against self-incrimination. Id. at 48, 122 S.Ct. 2017. Because she disagreed with the plurality’s application of Sandin’s “atypical and significant hardship” standard, Justice O’Connor did not join in the plurality opinion in McKune. However, she did agree that the consequences of the plaintiff prisoner’s refusal to incriminate himself were not “so great as to constitute compulsion for the- purposes of the Fifth Amendment privilege against self-incrimination.” Id. at 49-50, 122 S.Ct. 2017 (O’Connor, J., concurring). Thus, she concurred in the judgment. As we noted in Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir.2002), “[bjecause Justice O’Connor based her conclusion on the narrower ground that the KDOC’s policy was not compulsion' under the Fifth Amendment, we view her concurrence as the holding of the Court in McKune.” See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”). Accordingly, the question we must resolve is whether, under the standard applied by Justice O’Connor in her concurring opinion, the consequences of Mr. Wirsching’s refusal to participate in the treatment program for sexúal offenders were “so great as to constitute compulsion” for purposes of the Fifth Amendment privilege against self-incrimination. McKune, 536 U.S. at 49-50, 122 S.Ct. 2017 (O’Connor, J., concurring). In this regard, we note that the consequences suffered by the plaintiff prisoner in McKune — reduction in privileges" }, { "docid": "23234179", "title": "", "text": "the treatment program for sex offenders- — that he admit that he committed a sex offense. He contends that because he refused to participate in the treatment program, he was ineligible to earn good time credits at the higher rate available to participating prisoners. The denial of this benefit, Mr. Gwinn maintains, constituted impermissible compulsion of incriminating testimony. Mr. Gwinn’s argument is controlled by the Supreme Court’s decision in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and this circuit’s subsequent interpretation of that decision in Searcy v. Simmons, 299 F.3d 1220 (10th Cir.2002). In McKune, a divided Supreme Court reversed a decision of this court applying the Fifth Amendment’s bar on compelling incriminating testimony. This court had concluded that a Kansas policy restricting an inmate’s privileges and transferring him to a maximum security prison after he refused to disclose his sexual history (as required by a sex offender treatment program) constituted impermissible compulsion. See Lile v. McKune, 224 F.3d 1175 (10th Cir.2000). Four justices concluded that the standard set forth in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), should control in determining whether the imposition of these consequences constituted impermissible compulsion: if the consequences constituted “atypical and significant hardship^] on [inmates] in relation to the ordinary incidents of prison life” then the program would violate the Fifth Amendment. McKune, 536 U.S. at 25, 122 S.Ct. 2017 (citing Sandin, 515 U.S. at 484, 115 S.Ct. 2293). Applying that Sandin standard to the facts before it, the plurality concluded that the penalties imposed against the prisoner were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See McKune, 536 U.S. at 41-45, 122 S.Ct. 2017. Accordingly, the plurality concluded that the Kansas program did not violate the plaintiff prisoner’s Fifth Amendment right against self-incrimination. McKune, 536 U.S. at 48, 122 S.Ct. 2017. Because she disagreed with the plurality’s application of Sandin’s “atypical and significant hardship” standard, Justice O’Connor did not join in the plurality opinion in McKune." }, { "docid": "22996957", "title": "", "text": "Lile, for refusing to make disclosures required under Kansas’s Sexual Abuse Treatment Program (“SATP”) did not amount to compulsion under the Fifth Amendment. Id. at 29, 122 S.Ct. 2017. Lile brought a § 1983 action against prison officials, alleging that they had violated his Fifth Amendment privilege against self-incrimination by reducing his privileges and transferring him from medium-security housing to maximum-security housing as a result of his refusal to disclose his sexual history as required by SATP. The plurality rejected Lile’s argument that his case was controlled by “the so-called penalty cases” like Garrity v. New Jersey, 385 U.S. 493, 497-98, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (striking down state statute forcing public employees “either to forfeit their jobs or to incriminate themselves”), and Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (“The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege.”), where lesser penalties involving the potential loss of economic livelihood were held unconstitutional. The plurality distinguished those cases because they “involved free citizens” and were “not easily extended to the prison context.” McKune, 536 U.S. at 40-41, 122 S.Ct. 2017. Relying instead on prisoner-specific cases like Murphy, 465 U.S. at 434-39, 104 S.Ct. 1136 (concluding that there was no Fifth Amendment violation where petitioner claimed he felt compelled to incriminate himself because he feared absent truthful statements his probation would be revoked), and Woodard, 523 U.S. at 286-88, 118 S.Ct. 1244 (concluding that there was no compulsion where a death row inmate had to choose between incriminating himself at a clemency interview and having adverse inferences drawn from his silence), where the Court found no Fifth Amendment violations despite the use of far harsher penalties such as longer incarceration or execution, the plurality wrote that “lawful conviction and incarceration necessarily place limitations on the exercise of a defendant’s privilege against self-incrimination.” McKune, 536 U.S. at 38, 122 S.Ct. 2017. In her concurrence, Justice O’Connor explained that penalties severe enough to offend the Fifth Amendment" }, { "docid": "15349572", "title": "", "text": "transfer to less desirable housing. More significantly, however, nonpar-ticipation in the SOP almost always results in an inmate being denied parole. See Ainsworth, 244 F.3d at 212 (“At the preliminary injunction hearing, an official from the New Hampshire Adult Parole Board testified that to date 97 to 98 percent of the sex offenders who received parole had completed the SOP.”). The plurality opinion in McKune concluded that Kansas’s SATP and the consequences for nonparticipation in it did not combine to create a compulsion that im-permissibly encumbers the constitutional right not to incriminate oneself. In coming to this conclusion, the plurality relied on Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a due process challenge to prison conditions. While acknowledging that a due process claim differs from a Fifth Amendment claim, the plurality looked to Sandin in evaluating the latter. McKune, 122 S.Ct. at 2026 (plurality opinion). The Court in Sandin held that adverse prison conditions cannot give rise to a due process violation unless they constitute “atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Relying on this “useful instruction,” the plurality concluded that the penalties imposed on the McKune plaintiff were significantly less than the potential penalties inmates faced in selected other cases in which the Supreme Court had determined that there was no Fifth Amendment violation. McKune, 122 S.Ct. at 2027-29 (plurality opinion). Therefore, according to the plurality, the SATP was not constitutionally impermissible. In concurring in the judgment on much narrower grounds, Justice O’Connor rejected the idea that Sandin’s due process analysis should be imported into a Fifth Amendment compulsion analysis. Indeed, she indicated that she “agree[d] with Justice STEVENS [in dissent] that the Fifth Amendment compulsion standard is broader than [the Sandin test].” McKune, 122 S.Ct. at 2032, 122 S.Ct. 2017 (O’Connor, J., concurring in the judgment). On the facts of McKune, however, Justice O’Connor did not believe that “the penalties assessed against respondent in response to his failure to incriminate himself [were] compulsive on any reasonable" }, { "docid": "23098421", "title": "", "text": "U.S. 24, 36, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). The Fifth Amendment right against self-incrimination applies not only in criminal trials, but whenever the state seeks to compel an individual to be a witness against himself or herself and divulge information that might incriminate that person in future criminal proceedings. See Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). The Supreme Court outlined the contours of a prisoner’s Fifth Amendment right against self-incrimination in McKune, which involved a convicted sex offender’s challenge to Kansas’ compulsory sex offender program and required him to admit his crime of incarceration, as well as any other past sex crimes. 536 U.S. at 29, 122 S.Ct. 2017. The information revealed by a prisoner during the sexual abuse treatment program was not privileged, Kansas reserved the right to use that information in future criminal proceedings, and it tested the veracity of the prisoner’s admissions with a polygraph. Id. at 30, 122 S.Ct. 2017. Lile, the state prisoner-plaintiff, was informed that if he refused to participate in treatment, his privilege status would be reduced from Level III to Level I, resulting in the curtailment of his visitation rights, earnings, work opportunities, ability to send money to his family, and other privileges. Id. at 31, 122 S.Ct. 2017. Lile would also be transferred to a maximum-security prison where his movement would be limited, where he would be placed in a four-person (instead of a two-person) cell, and where he would be surrounded by more dangerous criminals. Id. Lile filed a Fifth Amendment challenge to the compulsory sex offender therapy based on the fact that incriminating statements made during counseling were not privileged. Lile also argued that the purported punishments he faced if he refused to participate were sufficiently coercive as to constitute a violation of the right against self-incrimination. A plurality of the Supreme Court rejected this argument. Before finding it necessary to address the issues of privilege and immunity that Lile asserted rendered his participation in the sex offender therapy program a Fifth Amendment violation, the Court instructed that compulsion" }, { "docid": "22996950", "title": "", "text": "L.Ed.2d 409 (1984) (“A defendant does not lose this protection by reason of his conviction of a crime .... ”); cf. McKune v. Lile, 536 U.S. 24, 48-54, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (O’Connor, J., concurring in 4-1-4 decision) (applying the full-blown Fifth Amendment analysis to a prisoner’s claim that the prison’s requirement that he participate in a sex offender treatment program violated his constitutional right). To establish his Fifth Amendment claim, Antelope must prove two things: (1) that the testimony desired by the government carried the risk of incrimination, see Murphy, 465 U.S. at 435 n. 7, 104 S.Ct. 1136 (explaining that the state may compel answers “as long as it ... eliminates the threat of incrimination”); Minor v. United States, 396 U.S. 87, 98, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969) (rejecting a Fifth Amendment challenge because the risk of incrimination was “only imaginary and insubstantial ... rather than ... real and appreciable” (internal quotation marks omitted)), and (2) that the penalty he suffered amounted to compulsion, see Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (“[T]he touchstone of the Fifth Amendment is compulsion ....”); cf. Lile v. McKune, 224 F.3d 1175, 1179 (10th Cir.2000) (“The privilege has two components: incrimination and compulsion.”), rev’d, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (holding the state-imposed repercussions insufficiently coercive to amount to compulsion). A. Incrimination The Fifth Amendment privilege is only properly invoked in the face of “a real and appreciable danger of self-incrimination.” McCoy v. Comm’r, 696 F.2d 1234, 1236 (9th Cir.1983) (internal quotation marks omitted). “If the threat is remote, unlikely, or speculative, the privilege does not apply ....” Id. Thus, the Constitution offers no protection to an individual who, for example, asserts a general intent to refuse to answer any questions at a court hearing. See United States v. Pierce, 561 F.2d 735, 741-42 (9th Cir.1977) (holding that the probationer’s Fifth Amendment claim could not be evaluated because he had tendered an unspecific “blanket refusal” to answer any questions at a district court hearing designed to" }, { "docid": "23018078", "title": "", "text": "Thus, she concurred in the judgment. As we noted in Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir.2002), “[bjecause Justice O’Connor based her conclusion on the narrower ground that the KDOC’s policy was not compulsion' under the Fifth Amendment, we view her concurrence as the holding of the Court in McKune.” See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”). Accordingly, the question we must resolve is whether, under the standard applied by Justice O’Connor in her concurring opinion, the consequences of Mr. Wirsching’s refusal to participate in the treatment program for sexúal offenders were “so great as to constitute compulsion” for purposes of the Fifth Amendment privilege against self-incrimination. McKune, 536 U.S. at 49-50, 122 S.Ct. 2017 (O’Connor, J., concurring). In this regard, we note that the consequences suffered by the plaintiff prisoner in McKune — reduction in privileges and a transfer to a maximum security prison— resemble most of the consequences faced by Mr. Wirsching here. Compare McKune, 536 U.S. at 24, 122 S.Ct. 2017 (describing the plaintiff prisoner’s reduction in privileges for refusing to participate in a treatment program as involving the curtailment of “visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges” and adding that “[the prisoner] would be transferred to a maximum-security unit, where his movement would be more limited, he would be moved from a two-person to a four-person cell, and he would be in a potentially more dangerous environment”) with Rec. doc. 29 at 3 (describing Mr. Wirsching’s reduction in privileges for failure to participate in the treatment program as including “no television or radio in the cell, no tobacco items, no canteen [except on medical or religious grounds],” removal of property items, denial of recreation with the general prison population, and the wearing of orange-colored, prison-issue pants). In her concurring opinion in McKune, Justice O’Connor" }, { "docid": "15349573", "title": "", "text": "on [inmates] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Relying on this “useful instruction,” the plurality concluded that the penalties imposed on the McKune plaintiff were significantly less than the potential penalties inmates faced in selected other cases in which the Supreme Court had determined that there was no Fifth Amendment violation. McKune, 122 S.Ct. at 2027-29 (plurality opinion). Therefore, according to the plurality, the SATP was not constitutionally impermissible. In concurring in the judgment on much narrower grounds, Justice O’Connor rejected the idea that Sandin’s due process analysis should be imported into a Fifth Amendment compulsion analysis. Indeed, she indicated that she “agree[d] with Justice STEVENS [in dissent] that the Fifth Amendment compulsion standard is broader than [the Sandin test].” McKune, 122 S.Ct. at 2032, 122 S.Ct. 2017 (O’Connor, J., concurring in the judgment). On the facts of McKune, however, Justice O’Connor did not believe that “the penalties assessed against respondent in response to his failure to incriminate himself [were] compulsive on any reasonable test.” Id. at 2035 (emphasis added). Curtailment of certain privileges and a transfer to less hospitable housing were simply not consequences “serious enough to compel [plaintiff] to be a witness against himself,” id. at 2033-34, regardless of the theory used to evaluate the claim. Thus, without subscribing to the plurality’s reasoning, Justice O’Connor concurred in the plurality’s judgment. Id. at 2035. II. When no single rationale explains the result of a divided Supreme Court, we interpret the holding to be the “position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Hence the Tenth Circuit held on remand in McKune that the inmates’ claims “[did] not rise to the level of compulsion contemplated by Justice O’Connor’s concurring opinion” and dismissed them on that ground. Lile v. McKune, 299 F.3d 1229, 1230 (10th Cir.2002). See also Searcy v. Simmons, 299 F.3d 1220," } ]

[ { "docid": "22986907", "title": "", "text": "employees to submit the requisite paperwork after their initial leave has begun and, in some cases, even after they have returned from leave. Cehrs brought an action against Northeast on February 21, 1995, alleging that it fired her in violation of the ADA, the FMLA, and relevant state statutes. The district court granted Northeast’s motion for summary judgment, holding that Cehrs failed to state a prima facie case under the ADA because she was not “otherwise qualified” within the meaning of the Act. In addition, the court determined that the FMLA was inapplicable because Cehrs was unable to return to work within the twelve weeks maximum leave permitted by the statute. Finally, the district court dismissed Cehrs’s state-law claims without prejudice by refusing to exercise pendent jurisdiction over them. This appeal followed. II. ANALYSIS A. Standard of Review This court reviews de novo a district court’s grant of summary judgment. E.E.O.C. v. Prevo’s Family Market, 135 F.3d 1089, 1093 (6th Cir.1998). Fed.R.Civ.P. 56(c) directs that summary judgment shall be granted if “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.” A genuine issue for trial exists “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). A fact is material if its resolution will affect the outcome of the lawsuit. Id. All factual inferences “must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). B. Cehrs’s ADA Claim The ADA prohibits employment discrimination based on an employee’s disability. Specifically, the ADA mandates that: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or" } ]

[ { "docid": "22186203", "title": "", "text": "of travel, even some local travel, he is subject to a rise in his levels of anxiety to one degree or another. Id. at 12. Nor does plaintiff contend that his condition prevented him from commuting to work. Plaintiff further suggests that his condition meets the definition of “disability” under the NYHRL because he suffers from a “mental ... impairment ... demonstrable by medically accepted clinical ... diagnostic techniques.” N.Y. Exec. Law § 292(21). Finally, plaintiff maintains that the deposition testimony of Cunningham and Lindstedt created a triable issue of fact as to whether Johnson Controls used trumped-up allegations of misconduct as a pretext for dismissing him because of his alleged disability, and that the district court therefore erred by granting defendants’ motion for summary judgment. II. Discussion We review the district court’s order granting summary judgment de novo. See Beatie v. City of New York, 128 F.3d 707, 710 (2d Cir.1997). Summary judgment must be entered “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, 2552, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (citation omitted). A. The ADA Claim The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees----” 42 U.S.C. § 12112(a). In order to make out a prima facie case of discriminatory discharge under the ADA, a plaintiff must show that (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation;" }, { "docid": "3564849", "title": "", "text": "the evidence are prohibited during the consideration of a motion for summary judgment; rather, the evidence should be viewed in the light most favorable to the non-moving party.” Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir.1999); see also Gribcheck v. Runyon, 245 F.3d 547, 551 (6th Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). ' “[A]ny direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true.” Muhammad v. Close, 379 F.3d 413, 416 (6th Cir.2004). III. ADA Discrimination Claim A.’ Legal Framework The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of a disability.” 42 U.S.C. § 12112(a). The statute defines “discriminate” to include “not making reasonable accommodation to the known physical ... limitations of an otherwise qualified individual with a disability” unless the employer “can demonstrate that the accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A). An “otherwise qualified\" individual” is one who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). “[I]f the plaintiff has direct evidence that the employer relied on his or her disability in making an adverse employment decision,” this Court proceeds to a burden-shifting analysis. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315-16 (6th Cir.2012) (en banc). First, the plaintiff must establish a prima facie case by showing “that he is disabled and otherwise qualified for the position, either with or without reasonable accommodation.” Keith v. Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir.2013). Once the plaintiff has established a prima facie case, “the burden shifts to the defendant to show that accommodating the plaintiff would impose an undue hardship on the operation of its business.” Id.; see also Monette, 90 F.3d at 1183 n. 10, 1186 (“The employer will bear the burden of proving ... that a proposed accommodation would impose an" }, { "docid": "3668154", "title": "", "text": "with the clerk position. Blanks filed a charge of disability discrimination with the Texas Commission on Human Rights (“TCHR”) on September 8, 1997. Blanks received his right-to-sue letter and filed suit in the Northern District of Texas. The court granted summary judgment to SWB. In a well-reasoned memorandum opinion by Judge Fitzwater, the court found that Blanks failed to raise a genuine issue of material fact to show: (1) that he qualified for disability status under the ADA; (2) that SWB failed to accommodate him; or (3) that he was constructively discharged. II. STANDARD OF REVIEW We review the district court’s summary judgment rulings de novo, applying the same standard as the district court. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir.2002). The Court may grant summary judgment where there is “no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The Court determines the materiality issue according to the substantive law of the case. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making the ultimate determination of whether summary judgment was proper, the Court reviews the facts, and all inferences drawn from those facts, in the light most favorable to the party opposing the motion. See Jurgens v. EEOC, 903 F.2d 386, 388 (5th Cir.1990). III. ANALYSIS A. Blanks’ Status Under the ADA To establish a prima facie case for discrimination under the ADA, a plaintiff must be a qualified individual with a disability. Mason v. United Air Lines, 274 F.3d 314, 316 (5th Cir.2001). The term “disability” under the ADA means: “(A) a physical impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). 1. Actual Disability In determining whether an individual’s HIV status qualifies as a disability under the first prong, we examine three factors: (1) whether the HIV infection is a physical" }, { "docid": "12932487", "title": "", "text": "filing discrimination complaints, and that it failed to reasonably accommodate her disability. Accordingly, we address only those challenges. II We review the district court’s grant of summary judgment de novo and “must view the evidence in the light most favorable to the nonmoving party.” Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C.Cir.2002); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A dispute about a material fact is not “genuine” unless “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. We consider Mogenhan’s retaliation claim in subpart A and her failure-to-aecommodate claim in subpart B. A The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability” may “be subjected to discrimination” by any federal agency “solely by reason of her or his disability.” 29 U.S.C. § 794(a). The Act states that “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under [provisions of] the Americans with Disabilities Act.” Id. § 794(d). The ADA, in turn, has both an anti-discrimination and an anti-retaliation provision. The anti-discrimination provision makes it unlawful to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The anti-retaliation provision, which is at issue here, bars “discriminat[ion] against any individual because such individual ... made a charge ... under this chapter.” Id. § 12203(a); see Smith v. District of Columbia, 430 F.3d 450, 454-55 (D.C.Cir.2005). The district court held that, for retaliatory conduct to be actionable, it must meet the same threshold of adversity required" }, { "docid": "23584508", "title": "", "text": "extended episode of diabetes-related hypoglycemia. Defendant, nevertheless, finalized plaintiffs termination. II. Analysis We review the district court’s order granting summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). A “material” fact is one “that might affect the outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine” issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. We must accept the non-moving party’s evidence, and draw all justifiable inferences in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). ‘We may affirm a decision of the district court if correct for any reason, including one not considered below.” See United States Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir.2003). A. Disability Discrimination The ADA proscribes discrimination “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. Under the ADA, an employer’s denial of employment opportunities to an employee with a disability may constitute such unlawful discrimination if the denial is based upon the employer’s need “to make reasonable accommodation to the physical or mental impairments of the employee or applicant.” 42 U.S.C. § 12112(b)(5)(B) (1991). To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that: “(1) he is disabled; (2) he is otherwise qualified for the position with or without reasonable accommodation; (3) he suffered an adverse employment decision; (4) his employer knew or had reason to know of" }, { "docid": "23310563", "title": "", "text": "at 14. This appeal followed. Discussion We review decisions to grant summary judgment de novo, applying the same standards as did the district court, see Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995), and affirming only when no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We view all evidence in the light most favorable to the non-moving party and recall that, “[bjecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.” Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). However, summary judgment is proper if the plaintiff fails to establish any element of his or her prima facie case. See Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir.1998). Statutory Background: Title I of the ADA bars employers from discriminating against “a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA further defines discrimination to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity .... Id. § 12112(b)(5)(A). As the statutory language indicates, ADA protection extends only to a “qualified individual with a disability,” namely, “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). Thus, to establish a prima facie case of discrimination under" }, { "docid": "314791", "title": "", "text": "at CTG. Despite his requests for these accommodations, CTG refused to accommodate his disability, allegedly informing him, “We don’t do that here.” After failing an exam, Brennan was removed from the Elite Program on April 9, 2001. Brennan filed a charge of employment discrimination with the Equal Employment Opportunity Commission and received a right to sue letter. He then sued, alleging violations of the ADA and intentional infliction of emotional distress. The district court held that he lacked standing to bring his ADA claim and could not demonstrate evidence sufficient to support his claim of intentional infliction of emotional distress. II. A. We review a summary judgment de novo and are bound by the same standards as those employed by the district court. See Chaplin v. NationsCredit Corp., 307 F.3d 368, 371 (5th Cir.2002). Namely, summary judgment is appropriate only where “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ when viewed in the light most favorable to the non-movant, ‘show that there is no genuine issue as to any material fact.’ ” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Once the moving party has demonstrated that the non-moving party has no evidence such that a reasonable jury could support a verdict in its favor, the non-moving party must put forth specific facts that demonstrate a genuine factual issue for trial. Id. B. Title I of the ADA prohibits discrimination in employment-related decisions based on the disability of an otherwise qualified individual. Specifically, § 12112(a) provides, “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Id. Brennan contends that this provision compels entities such as UTI and Mercedes to provide accommodations for his disabilities as part of the “job training” component of section 12112. Nevertheless, the" }, { "docid": "3294815", "title": "", "text": "the hiring of new officers, mandated the removal of those officers who could not perform the duties of a police officer. His administration took steps to inform each officer, including Champ, of his/her right to seek medical retirement, service retirement, transfer into another position with the County service, leave of absence, or resignation. On December 28, 1992, effective January 1, 1993, Champ was placed on disability retirement. Champ filed a charge of discrimination based on his disability against the Baltimore County Police Department with the Equal Employment Opportunity Commission (“EEOC”) and the Maryland Commission on Human Relations. On September 10, 1993, the EEOC issued its Determination, which concluded that Champ had failed to establish a violation of the ADA. Champ thereafter filed the instant action on December 9, 1993. DISCUSSION Summary judgment will be granted when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In considering each motion, the Court must view the underlying facts and all reasonable inferences drawn therefrom in the light most favorable to the party opposing summary judgment. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The mere existence of a “scintilla of evidence” is not enough to frustrate a motion for summary judgment. In order to defeat a motion for summary judgment, the pleadings must show evidence from which the finder of fact could reasonably find for the party opposing judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The ADA prohibits discrimination in employment against a qualified individual on the basis of a disability. 42 U.S.C. § 12112. The Act defines discrimination as the failure of an employer to make reasonable accommodation to an otherwise qualified individual with a disability unless the employer can show that the accommodation would impose an undue hardship. § 12112(b)(5)(A). The" }, { "docid": "3996036", "title": "", "text": "decided that the alleged reason for the discharge did not fit within Wisconsin’s narrow public policy exception to the general rule of at-will employment. Following the judgment, Eaton submitted a bill of costs to the clerk of the district court requesting costs pursuant to Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920, and local rules. After briefing, the clerk taxed costs of $3,897.95 plus interest in Eaton’s favor. Hoeller appeals both the grant of summary judgment and the taxing of costs. II. DISCUSSION A. ADA Claims This Court reviews the district court’s grant of summary judgment de novo. Cornfield by Lewis v. Consolidated High School Dish No. 230, 991 F.2d 1316, 1320 (7th Cir.1993). We apply the same standard as the district court, granting summary judgment only if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We construe the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The ADA prohibits covered employers from discriminating against “a qualified individual with a disability because of the disability” with regard to such matters as hiring, advancement, and discharge. 42 U.S.C. § 12112(a). Hoeller, therefore, must show that he was a qualified individual with a disability at the time that Eaton allegedly refused to accommodate him and then terminated him. See Nowak v. St. Rita High Sch., 142 F.3d 999, 1002 (7th Cir.1998) (prima facie case under ADA includes showing that plaintiff is qualified individual with disability). This requirement has two central elements: the individual must be “qualified,” and he or she must have “a disability.” The district court did not question whether Hoel-ler was qualified for the position he held at Eaton, but rather decided the ease on the ground that he did not suffer from a disability" }, { "docid": "22179273", "title": "", "text": "of 1993, Taylor must show that he did make a request for reasonable accommodations. Taylor’s deposition, which was submitted as part of Defendant’s summary judgment evidence and is not controverted, does not show that Taylor ever requested any accommodation.... Taylor therefore fails to establish a prima facie case of ADA discrimination. On April 24, 1995, Taylor filed a notice of appeal to this Court. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, applying the same standard as did the district court. McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 301 (5th Cir.1993). We “review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Summary judgment is appropriate when the summary judgment record demonstrates “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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th Cir.1995). AMERICAN WITH DISABILITIES ACT The ADA is a federal antidiscrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities. Americans with Disabilities Act, 29 C.F.R. § 1630, App. (1995). The ADA expansively prohibits discrimination in employment against persons with a disability, providing that, [n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). A “disability” includes, in relevant part, a physical or" }, { "docid": "23121590", "title": "", "text": "Winer Industries had proffered legitimate non-discriminatory reasons for his termination, including its reduction in force and DeLuca’s recent poor sales performance, which DeLuea had failed to show were merely pretextual. This appeal followed. II. We review the district court’s grant of summary judgment for Winer Industries de novo, Cliff v. Bd. of School Com’rs of Indianapolis, 42 F.3d 403, 409 (7th Cir.1994), and review -the record, and all reasonable inferences which can be drawn from it, in the light most favorable to DeLuea, the nón-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists the non-moving party must show, by specific factual allegations, the existence of such an issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7th Cir.1994) (quoting Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993)) (citations omitted). The ADA provides: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112. A plaintiff can prove discrimination by either direct or circumstantial evidence that he was fired because of his disability. See Sarsha, 3" }, { "docid": "9857271", "title": "", "text": "discrimination under the ADA. Lastly, the court stated that, even if Amadio had been able to establish a prima facie case under the ADA, Ford had articulated a legitimate, nondiscriminatory reason for Ama-dio’s termination — that Amadio failed to adequately document his absence as required by the February 28 Letter. II. DISCUSSION A. Standard of Review We review de novo the district court’s disposition of this case on summary judgment. See Cengr v. Fusibond Piping Systems, Inc., 135 F.3d 445, 450 (7th Cir.1998). In so doing, we bear in mind that summary judgment is only 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.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We, of course, view the record in a light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. ADA Claim The ADA states that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.42 U.S.C. § 12112(a). When, as here, there is no direct evidence of discrimination, a plaintiff must instead attempt to prove a prima facie case under the familiar scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir.1995). A prima facie case under the ADA is established when a plaintiff proves that: (1) he belongs to the protected group; (2) he performed his job satisfactorily; (3) he was subjected to an adverse employment action; and (4) similarly situated employees received more favorable treatment. See DeLuca, 53 F.3d at 797. If the plaintiff fails to prove any of these elements, his claim fails. See id. However, if the plaintiff establishes" }, { "docid": "23652012", "title": "", "text": "summary judgment on her ADA, ERISA and retaliatory discharge claims. She also appeals the denial of her motion to amend her complaint. For the reasons presented in the discussion below, we affirm the district court’s decisions granting summary judgment on all three claims and denying Feldman’s motion for leave to amend her complaint. II. ANALYSIS A. Summary Judgment We review the district court’s grant of summary judgment de novo, drawing our own conclusions of law and fact from the record before us. Haefling v. United Parcel Serv., 169 F.3d 494, 497 (7th Cir.1999). 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.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, we must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, neither “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is sufficient to defeat a motion for summary judgment. “A genuine issue of fact exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole.” Pipitone v. United States, 180 F.3d 859, 861 (7th Cir.1999) (citation omitted). 1. ADA Claim and Judicial Estoppel The ADA prohibits employer discrimination against an employee on the basis of a disability. 42 U.S.C. § 12112(a). The ADA both proscribes adverse employment treatment of an employee on the basis of" }, { "docid": "10840528", "title": "", "text": "age. On December 29, 1998, the trial judge agreed with Hayes Wheels and granted the defendant summary judgment. Spath appeals. II. ISSUE On appeal, Spath argues that the trial court erred in granting summary judgment to his employer because there are genuine issues of material fact regarding whether Hayes Wheels treated him differently from other employees because of his disability. III. ANALYSIS A. Standard of Review We review the trial court’s grant of summary judgment de novo. See Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 898 (7th Cir.2000). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, demonstrate that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, we construe all facts in the light most favorable to the party opposing the motion and draw all justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the mere existence of an alleged factual dispute between the parties is not sufficient to defeat a motion for summary judgment. See id. at 252, 106 S.Ct. 2505. In this case, Spath is required to demonstrate that there exists a genuine issue of triable fact and that there is evidence on which a jury could reasonably find for him. See Wollin v. Gondert, 192 F.3d 616, 620 (7th Cir.1999). B. Spath’s Disparate Treatment Claim The ADA makes it unlawful to “discriminate against a qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). To establish a claim of discrimination under the ADA, a plaintiff must demonstrate: “ ‘(1) that [he was] disabled within the meaning of the ADA, (2) that [his] work performance met [his] employer’s legitimate expectations, (3) that [he] was discharged, and (4) that the circumstances surrounding [his] ... discharge indicate that it is more likely than not that [his] disability was the reason for these adverse actions.’ ”" }, { "docid": "15657752", "title": "", "text": "issue of material fact as to at least one essential element of Holiday’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If Hobday, as the non-moving party, presents evidence from which a jury might return a verdict in his favor, summary judgment may not be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering the City’s motion for summary judgment, we accept Holiday’s evidence as true and draw all reasonable inferences in his favor. Id. The facts and inferences drawn therefrom are thus viewed in the light most favorable to Holiday. DePiero, 180 F.3d at 776. Ultimately, we must decide “whether the evidence presents 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.” Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505). III. The ADA protects employees and job applicants from discrimination based on their disabilities. The statute provides that no covered employer “shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (1994). The ADA defines the term “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (1994). Accordingly, to prevail on his claim of unlawful employment discrimination under the ADA and the Rehabilitation Act, Holiday must demonstrate: (i) that he is an individual with a disability; (ii) that he is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and (iii) that he suffered an adverse employment action “because of’ his disability. See 42 U.S.C. § 12112(a); 29 U.S.C. § 794; Monette v. Electronic" }, { "docid": "3564848", "title": "", "text": "On June 22, 2012, Rorrer and Chief Kal-baugh submitted a Stipulation of Dismissal for all existing claims against Chief Kalbaugh in his individual capacity. On June 25, 2012, the district court approved the stipulation and dismissed those claims, but Rorrer did not waive his right to appeal the earlier dismissal of his First Amendment § 1983 claim against Chief Kalbaugh. On February 2, 2013, the district court granted the City’s motion for summary judgment as to all claims and entered judgment in favor of Stow. Rorrer filed a timely Notice of Appeal on March 1, 2013. This appeal followed. II. Standard of Review This Court reviews an order granting summary judgment de novo. Tysinger v. Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir.2006). 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); accord Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). “Credibility judgments and weighing of the evidence are prohibited during the consideration of a motion for summary judgment; rather, the evidence should be viewed in the light most favorable to the non-moving party.” Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir.1999); see also Gribcheck v. Runyon, 245 F.3d 547, 551 (6th Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). ' “[A]ny direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true.” Muhammad v. Close, 379 F.3d 413, 416 (6th Cir.2004). III. ADA Discrimination Claim A.’ Legal Framework The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of a disability.” 42 U.S.C. § 12112(a). The statute defines “discriminate” to include “not making reasonable accommodation to the known physical ... limitations of an otherwise qualified individual with a disability” unless the employer “can demonstrate that the accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A). An “otherwise qualified\" individual” is one who “with or without" }, { "docid": "13173440", "title": "", "text": "not mentioned prejudice or harassment during their conversation. That was the end of ConMed’s investigation into Yazdian’s discrimination complaints. On July 26, 2010, Sweatt, Jackson, Hut-to, and Hebbard decided to terminate Yaz-dian’s employment. ConMed maintains that it had to terminate Yazdian’s employment for violating ConMed’s conduct policy, “prior behavioral issues, and because when he received his written warning, he became combative.” Appellee Br. at 27. Yazdian avers that these reasons are pretext because ConMed terminated him in retaliation for his complaints about discrimination and because of his ethnic origin and religion. On February 28, 2011, Yazdian filed discrimination and retaliation charges against ConMed with the EEOC. After the EEOC issued a probable cause determination in Yazdian’s favor, Yazdian filed the instant lawsuit, alleging that ConMed violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating and retaliating against him. Yazdian amended his complaint to include a claim of unjust enrichment under Ohio law. After discovery, ConMed filed a motion' for summary judgment, which the district court granted with respect to all claims. Yazdian now appeals the district court s judgment as to the Title VII discrimination and retaliation claims. He does not appeal the district court’s order with respect to his unjust-enrichment claim. III. TITLE VII We review a district court’s grant of summary judgment de novo. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). When considering whether there is a genuine dispute of material fact, we must believe Yazdian’s evidence and draw “all justifiable inferences ... in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must abstain from making credibility determinations, weighing evidence, and “drawing of legitimate inferences” in favor of the moving party because those are “jury functions, not those of a judge.” Id. A. Retaliation Claim Title VII makes it an “unlawful employment practice” for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C." }, { "docid": "23243556", "title": "", "text": "Opportunity Commission (EEOC), charging that he was the subject of disability discrimination between January 14, 1993 and April 30, 1993. On August 3, 1995, the EEOC issued a right to sue letter. Wallin then filed the instant suit, claiming that MCF-Stillwater violated the ADA under a variety of theories. Wallin also claimed, under 28 U.S.C. § 1983, that Benson, Corbo, Hughes, and Bath denied him due process and equal protection of the laws. The district court granted summary judgment in favor of the defendants on all of Wallin’s claims. The district court also awarded partial attorneys’ fees of $330.67 to the defendants. Wallin appeals the district court’s grant of summary judgment. II. We review the district court’s grant of summary judgment de novo. Miners v. Cargill Communications, Inc., 113 F.3d 820, 822 (8th Cir.), cert. denied, — U.S. -, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997). 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). In determining whether the moving party is entitled to summary judgment, we “resolve all controversies in favor of the non-moving party, take the non-movant’s evidence as true, and draw all justifiable inferences in favor of that party.” Miners, 113 F.3d at 823. However, “the non-movant may not rest on allegations or denials in its pleadings but must ‘set forth specific facts showing that there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A. Wallin first claims that MCF-Stillwater violated the ADA by terminating him in 1993 because of his alcoholism and depression. To establish a prima facie case under the ADA, a plaintiff must show [1] that she was a disabled person within the meaning of the ADA, [2] that she was qualified to perform the essential functions of the job, and [3] that she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Miners, 113 F.3d at 823. Proceeding" }, { "docid": "11832639", "title": "", "text": "any accommodation requests, but estimated that Williams could return to work full-time on June 30. On June 13, however, Williams called Attendance Analyst Lisa Todd-Kyle, stating that she would not be able to return to work until her outpatient treatment program concluded eight weeks later. Williams called Todd-Kyle again on June 24 to reiterate that she could not return to work by June 30 due to the ongoing treatment program. Medical documentation sent from HealthQuest on June 20 confirmed that Williams’s treatment was projected to last until August 6. D. Procedural background After filing a charging document with the EEOC and receiving a right-to-sue letter, Williams filed a complaint against AT&T in the district court. The complaint alleged that AT&T had violated the ADA by failing to provide Williams with a reasonable accommodation, failing to engage in the interactive process of determining such an accommodation, and terminating Williams based on unlawful disability discrimination and retaliation for requesting an accommodation. AT&T filed a motion for summary judgment. In response, Williams moved for partial summary judgment on the issue of whether she was disabled under the ADA. The district court granted partial summary judgment in favor of Williams, concluding as a matter of law that she was disabled. But in a later ruling the court granted summary judgment in favor of AT&T on all of Williams’s claims. This timely appeal followed. II. ANALYSIS A. Standard of review We review de novo a district court’s grant of summary judgment. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). Summary judgment is proper when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “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). We must view all evidence in the light most favorable to the nonmoving party in making this determination. Tennial, 840" }, { "docid": "23377437", "title": "", "text": "alleging that he had been discriminated against on the basis of a perceived disability when his employment contract was not renewed. Mclnnis received a right to sue letter from the EEOC, and the present lawsuit resulted. As noted above, the magistrate judge concluded that Mclnnis failed to establish a prima facie case of discrimination under the ADA since he neither was nor was regarded as disabled. In the alternative, the magistrate judge concluded that ACCD had presented a legitimate, nondiscriminatory reason for terminating Mclnnis’s employment, which he failed to establish was a mere pretext for intentional discrimination. Mclnnis timely appealed. II. DISCUSSION We review the grant of summary judgment de novo, applying the same standards as the district court. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.1998). Summary judgment under Rule 56 of the Federal Rules of Civil Procedure 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it could affect the outcome of the lawsuit, and a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing all of the evidence, courts must look at the evidence and draw all inferences therefrom in a light most favorable to the non-moving party. See Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th Cir.1993). Thus, we review all of the evidence in this case in a light most favorable to Mclnnis, drawing all reasonable factual inferences therefrom and making all credibility determinations related thereto in his favor. 1. The Prima Facie Case of Discrimination. This being a case brought under the Americans With Disabilities Act where only circumstantial evidence is offered to show the alleged unlawful discrimination, we apply" } ]

[ { "docid": "12320793", "title": "", "text": "pageants, all expense trips for board members around the country, and unnecessary capital improvements.” Appellants Br. at 8-9. We believe that the plaintiffs’ claims are essentially claims of “mismanagement, self-dealing, and breach of fiduciary duty.” Cato, 1996 WL 502500, at *6. If the Cooperatives failed to maintain records and spent their money on non-necessary expenses, it is clear that they were not acting in accordance with their statutory purpose of providing their members with electricity “at the lowest cost consistent with sound business principles.” Tenn.Code Ann. § 65-25-203; see also Bourne v. Williams, 633 S.W.2d 469, 470-73 (Tenn.Ct.App.1981) (discussing a derivative claim brought by shareholders of a nonprofit corporation alleging that the corporation “[took] actions contrary to the best interests of the Corporation, and in violation of the purposes for which the Corporation was formed”). Such claims “must generally be brought as derivative actions because breaches of fiduciary duty are deemed to injure only the corporation.” Cato, 1996 WL 502500, at *6. We agree with the district court’s conclusion that the plaintiffs’ state-law claims are derivative rather than direct. 3. Demand requirement Finally, the plaintiffs contend that even if their state-law claims are derivative, a pre-suit demand would have been futile. Tennessee law recognizes “demand excused cases” on the basis of futility if the shareholders demonstrate “(1) that the board is interested and not independent and (2) that the challenged transaction is not protected by the business judgment rule.” Lewis, 838 S.W.2d at 222. The plaintiffs contend that demand would have been futile in this case due to the contractual prohibition against distributing patronage refunds as well as the asserted fact that “the Cooperatives have not kept adequate records for the determination of each member’s patronage capital.” Appellants Br. at 23. The district court correctly concluded that “the Plaintiffs have failed to plead adequately that a pre-suit demand should be excused.” J.A. at 424 (Dist. Ct. Mem. at 14). As an initial matter, the fact that the contract between the TVA and the Cooperatives prohibits patronage refunds is not dispositive, because the “Plaintiffs sought distribution of excessive revenue in the" } ]

[ { "docid": "17423601", "title": "", "text": "by individual directors or subsets of the board, Delaware law turns to the Rales test. See id.; Rattner v. Bidzos, 2003 WL 22284323 (Del.Ch. 2003) (“[BJecause [the shareholder] does not challenge any particular action undertaken by the Board as a whole, the standard established in Rales v. Blasband governs the determination of demand futility.”). But see Guttman v. Huang, 823 A.2d 492, 501 (Del.Ch.2003) (suggesting that the Rales test is not so different from the Aronson test in that it “makes germane all of the concerns relevant to both the first and second prongs of Aronson”). Under Rales, a court must determine whether or not the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand. If the derivative plaintiff satisfies this burden, then demand will be excused as futile. Id. at 934. Accordingly, a second question raised by defendants’ motion to dismiss under Rule 23.1 is whether, for challenged transactions not made by the board as a whole, plaintiffs complaint pleads with particularity facts that meet the Rales test. Both of these tests {Aronson and Rales) rely on a “reasonable doubt” standard. It is important to note that the Delaware Supreme Court has conclude[d] that it would be neither practicable nor wise to attempt to formulate a criterion of general application for determining reasonable doubt.... Reasonable doubt must be decided by the trial court on a case-by-case basis employing an objective analysis. Grobow v. Perot, 539 A.2d 180, 186 (Del.1988), overruled on other grounds by Brehm, 746 A.2d 244. Aronson, which “introduced the term ‘reasonable doubt’ into corporate derivative jurisprudence,” Grimes v. Donald, 673 A.2d 1207, 1217 (Del.1996), overruled on other grounds by Brehm, 746 A.2d 244, made expressly clear that “the entire review is factual in nature.” Aronson, 473 A.2d at 815. 3. Other Rule 23.1 Considerations I note at this time several other important principles that guide consideration of a Rule 23.1 motion to dismiss. First, even" }, { "docid": "3430418", "title": "", "text": "adopted Delaware’s demand futility standard. In re PSE & G S’holder Litig., 173 N.J. 258, 801 A.2d 295, 310 (2002). That standard requires a plaintiff to create a reasonable doubt that either “(1) the directors are disinterested and independent, or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.” Id. (adopting the test as set out in Aronson v. Lewis, 473 A.2d 805 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000)). For the second prong of the demand futility test, PSE & G adopted the gloss applied by another New Jersey court, In re Prudential Ins. Co. Deriv. Litig., 282 N.J.Super. 256, 659 A.2d 961 (N.J.Super.Ct. Ch. Div.1995), cited by PSE & G, 801 A.2d at 310, which noted that the test’s second prong does not apply to situations in which the board has not taken an action, Prudential, 659 A.2d at 975 (citing Rales v. Blasband, 634 A.2d 927 (Del. 1993)); see also PSE & G, 801 A.2d at 309-10. Plaintiffs alleged that Merck’s board “failed to act” by allowing Medco to continue wrongful business practices and inflate revenue. The issue is therefore whether the second prong of the demand futility test applies. In its 1993 Rales v. Blasband decision, 634 A.2d at 933-34, the Delaware Supreme Court created the second prong’s inaction exception (later followed by PSE & G and Prudential): the demand futility test does not apply where, inter alia, there was no “business decision of the board,” id. at 934. The Rales Court suggested that a “failure to oversee subordinates” would fall under this exception. Id. at 934 n. 9. Prudential followed this suggestion, holding that a company’s directors’ “failure to oversee both subordinates and a subsidiary corporation” fell within the exception and thus that the second prong' — whether the contested transaction was the product of a valid exercise of business judgment— did not apply. Prudential, 659 A.2d at 975. Plaintiffs dispute this reading of the cases and cite a Seventh Circuit case for the propositions (1) that application of the Rales test is" }, { "docid": "17082676", "title": "", "text": "failure to review the AVG offer and Marteau’s purported removal as a director — and the Rales test applies to the examples of Erwin’s alleged misconduct, (Ds’ Mem. 28 n. 11), Plaintiffs argue that the distinction between the. two tests is inconsequential in this case because demand would be futile where, as here, there was no majority of disinterested and independent directors, (Ps’ Mem. 25). If the SAC pleads facts raising a reasonable doubt as to the NHI BOD’s disinterestedness and independence, see In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808, 820 (Del.Ch.2005) (“The two prongs of the Aronson test are disjunctive, meaning that if either part is satisfied, demand is excused.”), aff'd, 906 A.2d 766 (Del.2006), demand will be futile with respect to all of Plaintiffs’ allegations. The SAC alleges that demand was futile generally because half of the NHI BOD — Erwin, a Bessemer affiliate, and Levine, a Bessemer employee — was under the “domination and control of Bessemer,” (SAC ¶ 254), and thus interested and not independent. See In re The Limited, Inc. S’holders Litig., No. CV-17148, 2002 WL 537692, at *7 (Del.Ch. Mar. 27, 2002) (“[Wjhere the challenged actions are those of a board consisting of an even number of directors, plaintiffs meet their burden of demonstrating the futility of making demand on the board by showing that half of the board was either interested or not independent.”). Under Delaware law, “[a] director is considered interested where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders. Directorial interest also exists where a corporate decision will have a materially detrimental impact on a director, but not on the corporation and the stockholders.” Rales, 634 A.2d at 936 (citation omitted). Although the SAC contains a conclusory allegation that the majority of NHI’s BOD was “not disinterested” with respect to the AVG offer, (SAC ¶ 243), it contains no allegations that any NHI directors stood to receive a personal financial benefit from, or that any director might be injured by, the decisions at issue" }, { "docid": "21296204", "title": "", "text": "re Tyson Foods Inc., Consol. S’holder Litig., 919 A.2d 563, 582 (Del.Ch.2007) (demand futility must be pleaded in greater detail than ordinary allegations of breach of duty of loyalty). The state court relied on Delaware authority requiring “particularized factual statements,” which reflects the notion that the particularity requirement is not a procedural, but a substantive rule, and therefore is governed by Delaware law. See Kauffman, 479 F.2d at 263 (quoting Bartlett v. N.Y., N.H. & H. R.R., 221 Mass. 530, 109 N.E. 452, 456 (1915)). We consider the particular allegations as true for purposes of the motion to dismiss, see Harhen v. Brown, 431 Mass. 838, 730 N.E.2d 859, 862 (2000), but we give no effect to conclusory allegations, see Levine v. Smith, 591 A.2d 194, 207 (Del.1991), overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del.2000). Delaware law requires that in a case such as this, in which the directors are accused of nonfeasance rather than misfeasance, a would-be derivative plaintiff either must make demand on the board to bring the suit or else must allege particular facts which “create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.” Stone v. Ritter, 911 A.2d 362, 366-67 (Del.2006) (emphasis added)(inter nal quotation marks omitted). Demand will be excused only if a majority of the board members are interested or lack independence. See Rales v. Blasband, 634 A.2d 927, 930 (Del.1993). The first way of showing demand futility, “interest” of the directors, means that the director stands to gain or lose personally and materially depending on the board’s decision. Id. at 936. Somewhat counterintuitively, the fact that the director himself is named as a defendant in the suit does not create a reasonable doubt about whether the director is “interested” in the decision about whether to bring the suit on behalf of the corporation. See Aronson v. Lewis, 473 A.2d 805, 809, 818 (Del.1984) (all directors were sued, but futility of demand not shown), overruled on other" }, { "docid": "17423599", "title": "", "text": "of public record. Circumstances here militate strongly in favor of looking outside the complaint. A true and accurate determination of the state of incorporation is vital to a threshold choice of law. Moreover, plaintiff appears to have acquiesced to defendants’ contention. In his oppositions to defendants’ motion to dismiss, plaintiff does not contest defendants’ contention that Delaware is the state of incorporation and, in fact, solely argues Delaware law. Hancock’s Certificate of Incorporation reveals that Delaware is its state of incorporation. (Certificate of Incorporation, Exh. I to Docket No. 19.) Thus, I conclude that Delaware is the state of incorporation for Hancock. Hancock appears to have been a Massachusetts Mutual Life Insurance Company before converting to a Delaware Corporation. This fact likely explains plaintiffs glaring error. Under Delaware law, Aronson v. Lewis, 473 A.2d 805 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000), remains the seminal precedent on the circumstances for demand futility when a shareholder challenges a decision by the board of the corporation as a whole. Aronson and its progeny provide that demand futility is established if, accepting the well-pleaded facts of the complaint as true, the alleged particularized facts raise a reasonable doubt that either (1) the directors are disinterested or independent with respect to the challenged transaction or (2) the chai- lenged transaction was the product of a valid exercise of the directors’ business judgment. See, e.g., id. at 812; Pogostin v. Rice, 480 A.2d 619, 624 (Del.1984), overruled on other grounds by Brehm, 746 A.2d 244. Accordingly, one question raised by defendants’ motion to dismiss under Rule 23.1 is whether, for each challenged decision by the board as a whole, plaintiffs complaint pleads with particularity facts that meet either prong of the Aronson test. Aronson, however, applies only to challenged transactions that were made by the board as a whole. See, e.g., Rales v. Blasband, 634 A.2d 927, 933-34 (Del.1993) (“[A] court should not apply the Aronson test for demand futility .... where the subject of the derivative suit is not a business decision of the board.”). For transactions made" }, { "docid": "9595938", "title": "", "text": "the practical ability of the sole stockholder to exercise control over the subsidiary.” “Because the parent corporation determines, through its 100 percent control, whether or not the subsidiary will sue, ‘there is no basis in law or logic’ to require a separate demand futility analysis at the subsidiary level.” Id. at *18, quoting Lambrecht, 3 A.3d at 288-89. Therefore, “the Lambrecht Court repeatedly observed that in a double derivative action involving a wholly owned subsidiary, a stockholder plaintiff only must plead demand futility (or otherwise satisfy Rule 23.1) at the parent level.” Id., citing Lambrecht, 3 A.3d at 249 n. 29, 282, 289 n. 40, 290. Plaintiff here must establish the futility of a demand on the JPMorgan Board only, which he fails to do. The complaint must plead facts with particularity showing that demand would have been futile. Fed.R.Civ.P. 23.1(b)(3); Del. Ch. Ct. R. 23.1(a); see also Stone, 911 A.2d at 367 & n. 9; Brehm v. Eisner, 746 A.2d 244, 254 (Del.2000). The plaintiff may not rely on mere conclusory allegations. In re infoUSA, Inc. S’holders Litig., 953 A.2d 963, 985 (Del.Ch.2007); Brehm, 746 A.2d at 267 (dismissing complaint which it described as a “blunderbuss of mostly conclusory pleading” for failure to adequately plead demand futility); Richardson v. Graves, C.A. No. 6617, 1983 WL 21109, at *2 (Del.Ch. Mar. 7, 1983) (“Generalities, artistically ambiguous, all-encompassing conclusory allegations are not enough.”), a plaintiff must provide particularized allegations raising a reasonable doubt as to whether (1) a majority of the directors are disinterested and independent, or (2) where a specific decision of the Board is challenged, the decision was the product of a valid exercise of business judgment. See Aronson v. Lewis, 473 A.2d at 814 (establishing the two-pronged test); In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808, 824 (Del.Ch. 2005) (finding that demand was not excused because plaintiff could not prove “that a majority of the board of JPMC was either interested or not independent”); Beam v. Stewart, 845 A.2d 1040, 1048-50 (Del.2004) (describing the first prong); Brehm, 746 A.2d at 256; Rales, 634 A.2d" }, { "docid": "17082674", "title": "", "text": "substantive.... While Rule 23.1 governs the procedural aspects of the demand requirement, the second, substantive dimension of the demand requirement, which concerns the adequacy of the efforts actually put forth by a'plaintiff, is governed by state law.”) Rule 23.1 is solely concerned with the adequacy of the SAC, “merely requiring] that, [it] allege the facts that will enable [the] court to decide whether such a demand requirement has been satisfied.” Halebian v. Berv, 590 F.3d 195, 211 (2d Cir.2009) (internal quotation marks omitted). For the reasons set forth below, I find that Plaintiffs have pleaded particularized facts plausibly rebutting the presumption that the Bessemer-affiliated directors were independent, thus satisfying the procedural requirements of Rule 23.1. Substantively, Delaware law governs whether Plaintiffs’ allegations of demand futility are adequate. To show demand futility for an exercise of BOD action, Plaintiffs must plead facts creating “a reasonable doubt ... that: (1) the directors are disinterested and independent and (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.” Aronson v. Lewis, 473 A.2d 805, 814 (Del.1984), overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del.2000). “If a plaintiff can demonstrate a reasonable doubt as to the first or second prong of the Aronson test, then he has demonstrated that demand would have been futile.” In re'Goldman Sachs Mortg: Servicing S’holder Derivative Litig., No. 11-CV-4544, — F.Supp.2d -, -, 2012 WL 3293506, at *4 (S.D.N.Y. Aug. 14, 2012). Where the complaint alleges BOD inaction, however, the demand futility inquiry focuses only on the first prong of Aronson — whether Plaintiffs have established a “reasonable doubt that ... the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.”' Rales v. Blasband, 634 A.2d 927, 934 (Del.1993). “Where there is no conscious decision by directors to act or refrain from acting, the business judgment rule has no application.” Id.-at 933. b. Directorial Independence and Disinterestedness Although Defendants allege that the Aronson test applies to Plaintiffs’ allegations that challenge BOD action or the decision to refrain from acting — i.e., the" }, { "docid": "11463093", "title": "", "text": "a pleading standard higher than the normal standard applicable to the analysis of a pleading challenged under Rule 12(b)(6). In re Trump Hotels S’holder Derivative Litig., Nos. 96 Civ. 7820 DAB, 96 Civ. 8527 DAB, 2000 WL 1371317, at *6 (S.D.N.Y. Sept.21, 2000). In the instant matter, Plaintiffs concede that they did not make a demand on the Defendants. Their standing to raise the claims on Morgan Stanley’s behalf therefore turns on the question of demand futility. The Court evaluates demand futility according to the law of the state in which the company is incorporated, and therefore applies Delaware state law here. In re Trump Hotels, 2000 WL 1371317, at *6 (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). Applicable Demand Futility Standard In Aronson v. Lewis, 473 A.2d 805 (Del. 1984), the Delaware Supreme Court held that plaintiffs seeking to establish demand futility must “plead particularized facts that create a reasonable doubt that 1) the directors aré disinterested and independent, or [that] 2) the challenged transaction was a valid exercise of business judgment.” Seminaris v. Lando, 662 A.2d 1350, 1354 (Del.Ch.1995) (citing Aronson, 473 A.2d at 814). Such reasonable doubt must be raised as to a majority of the board of directors sitting at the time the complaint is filed. See Harris v. Carter, 582 A.2d 222, 228 (Del.Ch.1990). Whether or not “reasonable doubt” exists “must be decided by the trial court on a case-by-case basis” and not by any “rote and inelastic” criteria. Grobow v. Perot, 539 A.2d 180, 186 (Del.1988), overruled on other grounds by Brehm. Defendants argue, however, that the Court should not apply the two-pronged Aronson test, and that the Court should instead apply the demand futility test established by the Delaware Supreme Court in Rales v. Blasband, 634 A.2d 927 (Del. 1993). The Rales test essentially eliminates the business judgment rule prong of the Aronson test and focuses solely on whether the pleadings create a reasonable doubt that a majority of directors are disinterested and independent. See Rales, 634 A.2d at 933-34. Courts apply" }, { "docid": "21153539", "title": "", "text": "of Plaintiffs’ claims in this case are derivative, requiring a demand on CSC’s board or a particularized showing of demand futility. Rule 23.1, however, does not establish the circumstances under which demand would be futile, which are instead determined under the law of CSC’s incorporating state, Nevada. In re Silicon Graphics, Inc. Secs. Litig., 183 F.3d 970, 989-90 (9th Cir.1999) (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 96, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). Nevada law is consistent with both Federal Rule of Civil Procedure 23.1 and Delaware law regarding demand futility pleading requirements, and Nevada courts look to Delaware law for guidance on issues of corporate law. See Nev.Rev.Stat. § 41.520(2) (West.2007), and Nev. R. Civ. P. 23.1 (requiring particularized pleading for a plaintiffs failure to make a demand on the board); see also Shoen v. SAC Holding Corp., 137 P.3d 1171, 1179-80 (Nev.2006) (applying Delaware law’s particularity requirements for pleading demand futility). However, on a motion to dismiss for failure to comply with the requirements of Rule 23.1 and Delaware law, a court limits its consideration of the facts to those particularly alleged in the complaint, thus Plaintiffs’ pleading burden is more onerous than that required to withstand an ordinary motion to dismiss. Aronson, 473 A.2d at 813. Conclusory “allegations of facts or law not supported by allegations of specific fact may not be taken as true.” Levine v. Smith, 591 A.2d 194, 207 (Del.1991). In order to evaluate whether demand is futile and excused, Nevada courts have adopted two different tests employed by Delaware courts. See, e.g., Shoen, 137 P.3d at 1181-84 (evaluating and applying the two Delaware law demand futility tests, under Rales, 634 A.2d at 933-34, and Aronson v. Lewis, 473 A.2d 805, 812 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000) (en banc)). When the alleged wrong constitutes a business decision by the whole board of directors, a court should employ the Aronson test, which evaluates whether, under the particularized facts alleged, a reasonable doubt is created that: 1) the directors are disinterested and independent;" }, { "docid": "21153540", "title": "", "text": "Delaware law, a court limits its consideration of the facts to those particularly alleged in the complaint, thus Plaintiffs’ pleading burden is more onerous than that required to withstand an ordinary motion to dismiss. Aronson, 473 A.2d at 813. Conclusory “allegations of facts or law not supported by allegations of specific fact may not be taken as true.” Levine v. Smith, 591 A.2d 194, 207 (Del.1991). In order to evaluate whether demand is futile and excused, Nevada courts have adopted two different tests employed by Delaware courts. See, e.g., Shoen, 137 P.3d at 1181-84 (evaluating and applying the two Delaware law demand futility tests, under Rales, 634 A.2d at 933-34, and Aronson v. Lewis, 473 A.2d 805, 812 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000) (en banc)). When the alleged wrong constitutes a business decision by the whole board of directors, a court should employ the Aronson test, which evaluates whether, under the particularized facts alleged, a reasonable doubt is created that: 1) the directors are disinterested and independent; or 2) the challenged transaction was otherwise the product of a valid exercise of business judgment. Aronson, 473 A.2d at 812. In contrast, when the board members who decided the challenged act have since changed or when the challenged act does not constitute a business decision by the board, a court should employ the Rales test, which determines whether the particularized factual allegations create a reasonable doubt that, as of the time the complaint was filed, a majority of the board could have properly exercised its independent and disinterested business judgment in responding to a demand. Rales v. Blasband, 634 A.2d 927, 934 (Del.1993). Directorial “interest” exists whenever divided loyalties are present, or where the director will receive a personal financial benefit from a transaction that is not equally shared by the stockholders, or when a corporate decision will have a “materially detrimental impact” on a director but not the corporation or its stockholders. Rales, 634 A.2d at 936 (citations omitted). The personal benefit must arise “from the challenged transaction.” Id. at 933. Director “independence”" }, { "docid": "6693485", "title": "", "text": "136.) III. Plaintiffs’ Claims Are Dismissed for Failure to Make a Pre-Suit Demand The Unites States Supreme Court has made it clear “that the decisions of a corporation- — including the decision to initiate litigation — should be made by the board of directors or the majority of shareholders.” Kamen, 500 U.S. at 101, 111 S.Ct. 1711 (quoting Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 530, 104 S.Ct. 831, 78 L.Ed.2d 645 (1984)). As such, the Supreme Court has acknowledged that the board of a corporation controls any litigation, unless the court concludes that demand is “excused by extraordinary conditions” such as if the Board is incapable of acting independently and disinterestedly on behalf of the company. See id. at 96, 111 S.Ct. 1711 (quoting Ross v. Bernhard, 396 U.S. 531, 534, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970)); Aronson v. Lewis, 473 A.2d 805, 811 (Del.1984), overruled on other grounds by Brehm, 746 A.2d 244. Accordingly, before shareholders may file a derivative suit to pursue claims on behalf of the company, those shareholders must first demand that the board of directors file suit on behalf of the company. See Fed. R.Civ.P. 23.1. However, shareholders can avoid this pre-suit demand requirement if they can adequately demonstrate that demand should be excused because making it would have been futile. See Grimes, 673 A.2d at 1215-16, overruled in part on other grounds by Brehm, 746 A.2d 244. To do so, the shareholders must plead particularized facts that raise a reasonable doubt about the disinterest and independence of a majority of the directors. Id. Under Delaware law, the inquiry into whether a demand would be futile proceeds under either Rales v. Blasband, 634 A.2d 927 (Del.1993) or Aronson v. Lewis, 473 A.2d 805. When the alleged conduct at issue did not involve any affirmative action by the board of directors, courts apply the test set out in Rales, which holds that demand is excused only where “particularized factual allegations ... create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised" }, { "docid": "17082675", "title": "", "text": "805, 814 (Del.1984), overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del.2000). “If a plaintiff can demonstrate a reasonable doubt as to the first or second prong of the Aronson test, then he has demonstrated that demand would have been futile.” In re'Goldman Sachs Mortg: Servicing S’holder Derivative Litig., No. 11-CV-4544, — F.Supp.2d -, -, 2012 WL 3293506, at *4 (S.D.N.Y. Aug. 14, 2012). Where the complaint alleges BOD inaction, however, the demand futility inquiry focuses only on the first prong of Aronson — whether Plaintiffs have established a “reasonable doubt that ... the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.”' Rales v. Blasband, 634 A.2d 927, 934 (Del.1993). “Where there is no conscious decision by directors to act or refrain from acting, the business judgment rule has no application.” Id.-at 933. b. Directorial Independence and Disinterestedness Although Defendants allege that the Aronson test applies to Plaintiffs’ allegations that challenge BOD action or the decision to refrain from acting — i.e., the failure to review the AVG offer and Marteau’s purported removal as a director — and the Rales test applies to the examples of Erwin’s alleged misconduct, (Ds’ Mem. 28 n. 11), Plaintiffs argue that the distinction between the. two tests is inconsequential in this case because demand would be futile where, as here, there was no majority of disinterested and independent directors, (Ps’ Mem. 25). If the SAC pleads facts raising a reasonable doubt as to the NHI BOD’s disinterestedness and independence, see In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d 808, 820 (Del.Ch.2005) (“The two prongs of the Aronson test are disjunctive, meaning that if either part is satisfied, demand is excused.”), aff'd, 906 A.2d 766 (Del.2006), demand will be futile with respect to all of Plaintiffs’ allegations. The SAC alleges that demand was futile generally because half of the NHI BOD — Erwin, a Bessemer affiliate, and Levine, a Bessemer employee — was under the “domination and control of Bessemer,” (SAC ¶ 254), and thus interested and not independent. See" }, { "docid": "7294565", "title": "", "text": "to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (citations and internal quotation marks omitted). DISCUSSION I. Demand futility Nominal-defendant Openwave moves the Court to dismiss this action for plaintiffs’ failure to make a pre-suit litigation demand. Plaintiffs respond that they have sufficiently pled demand futility under Delaware law. Federal Rule of Civil Procedure 23.1 provides, in pertinent part, that in a derivative action brought by shareholders, the complaint must “allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiffs failure to obtain the action or for not making the effort.” According to the Ninth Circuit, pursuant to Rule 23.1: A shareholder seeking to vindicate the interests of a corporation through a derivative suit must first demand action from the corporation’s directors or plead with particularity the reasons why such demand would have been futile. Rule 23.1, however, does not establish the circumstances under which demand would be futile. For these standards, we turn to the law of the state of incorporation; in this instance, Delaware. To show futility under Delaware law, a plaintiff must allege particularized facts creating a reasonable doubt that (1) the directors are disinterested and independent, or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment. In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 989-90 (9th Cir.1999) (citing Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984) for the two prong test; other citations omitted). The two prong Aronson test is disjunctive. “If a derivative plaintiff can demonstrate a reasonable doubt as to the first or second prong of the Aronson test, then he has demonstrated that demand would have been futile.” Seminaris v. Lando, 662 A.2d 1350, 1354 (Del.Ch. 1995). “Where there is no conscious decision by directors to act or refrain from acting,” the second" }, { "docid": "7294566", "title": "", "text": "with particularity the reasons why such demand would have been futile. Rule 23.1, however, does not establish the circumstances under which demand would be futile. For these standards, we turn to the law of the state of incorporation; in this instance, Delaware. To show futility under Delaware law, a plaintiff must allege particularized facts creating a reasonable doubt that (1) the directors are disinterested and independent, or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment. In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 989-90 (9th Cir.1999) (citing Aronson v. Lewis, 473 A.2d 805, 815 (Del. 1984) for the two prong test; other citations omitted). The two prong Aronson test is disjunctive. “If a derivative plaintiff can demonstrate a reasonable doubt as to the first or second prong of the Aronson test, then he has demonstrated that demand would have been futile.” Seminaris v. Lando, 662 A.2d 1350, 1354 (Del.Ch. 1995). “Where there is no conscious decision by directors to act or refrain from acting,” the second prong of the Aronson rule is not at issue, and the courts inquire whether the complaint raises “a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.” Rales v. Blasband, 634 A.2d 927, 934 (Del.1993). “A director is considered interested where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders. Directorial interest also exists where a corporate decision will have a materially detrimental impact on a director, but not on the corporation and the stockholders.” Rales v. Blasband, 634 A.2d 927 (Del.1993) (citing Aronson). “[T]he mere threat of personal liability for approving a questioned transaction, standing alone, is insufficient to challenge either the independence or disinterestedness of directors, although in rare cases a transaction may be so egregious on its face that board approval cannot meet the test of business judgment, and a substantial likelihood of director liability therefore exists.” Aronson, 473 A.2d" }, { "docid": "17423600", "title": "", "text": "its progeny provide that demand futility is established if, accepting the well-pleaded facts of the complaint as true, the alleged particularized facts raise a reasonable doubt that either (1) the directors are disinterested or independent with respect to the challenged transaction or (2) the chai- lenged transaction was the product of a valid exercise of the directors’ business judgment. See, e.g., id. at 812; Pogostin v. Rice, 480 A.2d 619, 624 (Del.1984), overruled on other grounds by Brehm, 746 A.2d 244. Accordingly, one question raised by defendants’ motion to dismiss under Rule 23.1 is whether, for each challenged decision by the board as a whole, plaintiffs complaint pleads with particularity facts that meet either prong of the Aronson test. Aronson, however, applies only to challenged transactions that were made by the board as a whole. See, e.g., Rales v. Blasband, 634 A.2d 927, 933-34 (Del.1993) (“[A] court should not apply the Aronson test for demand futility .... where the subject of the derivative suit is not a business decision of the board.”). For transactions made by individual directors or subsets of the board, Delaware law turns to the Rales test. See id.; Rattner v. Bidzos, 2003 WL 22284323 (Del.Ch. 2003) (“[BJecause [the shareholder] does not challenge any particular action undertaken by the Board as a whole, the standard established in Rales v. Blasband governs the determination of demand futility.”). But see Guttman v. Huang, 823 A.2d 492, 501 (Del.Ch.2003) (suggesting that the Rales test is not so different from the Aronson test in that it “makes germane all of the concerns relevant to both the first and second prongs of Aronson”). Under Rales, a court must determine whether or not the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand. If the derivative plaintiff satisfies this burden, then demand will be excused as futile. Id. at 934. Accordingly, a second question raised by defendants’ motion to dismiss under Rule" }, { "docid": "5392060", "title": "", "text": "derivative action on behalf of a corporation must first demand action from the corporation’s directors or plead with particularity the reasons why such demand would have been futile. See Fed.R.Civ.P. 23.1. The federal rules however do not establish the circumstances under which demand would be futile. In re Silicon Graphics Inc., 183 F.3d 970, 989-90 (9th Cir.1999). Courts look to the law of the state of incorporation to determine whether demand in a particular case would have been futile. Id. at 990. Getty Images is a Delaware corporation and so the law of Delaware applies. “A cardinal precept of the General Corporation Law of the State of Delaware is that directors, rather than shareholders, manage the business and affairs of the corporation.” Aronson v. Lewis, 473 A.2d 805, 811 (Del.1984) overruled on other grounds by Brehm v. Eisner, 746 A.2d 244, 254 (Del.2000). Delaware has two tests for determining whether demand is futile. The first, the “Aronson test,” excuses a failure to make a demand where a plaintiff raises a reason to doubt that: (1) the directors are disinterested and independent or (2) the challenged transaction was otherwise the product of the directors’ valid exercise of business judgment. Id. at 814. “The essential predicate for the Aronson test is the fact that a decision of the board of directors is being challenged in the derivative suit.” Rales v. Blasband, 634 A.2d 927, 933 (Del.1993). The Delaware Supreme Court instructs that where the board that would consider the demand did not make the decision being challenged, that courts should apply a different test, the “Rales test.” Id. at 933-34. Under Rales, “a court must determine whether or not the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand. If the derivative plaintiff satisfies this burden, then demand will be excused as futile.” Id. at 934. Here, where the challenged transactions were not made by the Board, or even half of" }, { "docid": "3430417", "title": "", "text": "board were unable to act independently because of their business and personal relationships; and (3) the complaint did not demonstrate that the Merck directors were self-interested because of their personal gain from the alleged wrongful conduct. Plaintiffs argue that the test applied by the District Court was inapplicable be cause the Merck board’s conduct constituted an active decision not to act rather than inaction. They also argue that, because Medco’s business conduct was unlawful, Merck’s directors were not exercising business judgment by allowing Medco to persist in this conduct. In a case where state substantive law applies, we must apply the forum state’s choice-of-law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under New Jersey’s choice-of-law rules, the law of the state of incorporation governs internal corporate affairs. See Brotherton v. Celotex Corp., 202 N.J.Super. 148, 493 A.2d 1337, 1339 n. 1 (N.J.Super.Ct.Law Div.1985). Merck is a New Jersey corporation, so we apply New Jersey law. The New Jersey Supreme Court recently adopted Delaware’s demand futility standard. In re PSE & G S’holder Litig., 173 N.J. 258, 801 A.2d 295, 310 (2002). That standard requires a plaintiff to create a reasonable doubt that either “(1) the directors are disinterested and independent, or (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.” Id. (adopting the test as set out in Aronson v. Lewis, 473 A.2d 805 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000)). For the second prong of the demand futility test, PSE & G adopted the gloss applied by another New Jersey court, In re Prudential Ins. Co. Deriv. Litig., 282 N.J.Super. 256, 659 A.2d 961 (N.J.Super.Ct. Ch. Div.1995), cited by PSE & G, 801 A.2d at 310, which noted that the test’s second prong does not apply to situations in which the board has not taken an action, Prudential, 659 A.2d at 975 (citing Rales v. Blasband, 634 A.2d 927 (Del. 1993)); see also PSE & G, 801 A.2d at 309-10. Plaintiffs alleged that" }, { "docid": "19750678", "title": "", "text": "other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000). It is undisputed that no demand was made in this instance. The Plaintiff shareholder thus has the burden of demonstrating that demand is excused because it would have been futile. A finding of demand futility is authorized only where “particularized factual allegations of [the] derivative stockholder complaint create a reasonable doubt that, as of the time the complaint is filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.” Rales v. Blasband, 634 A.2d 927, 934 (Del.1993) (emphasis added); accord In re Friedman’s, Inc. Derivative Lit., 386 F.Supp.2d 1355, 1361 (N.D.Ga.2005). Interest is demonstrated where a director “will receive a personal financial benefit from a transaction that is not equally shared by the stockholders,” or “where a corporate decision will have a materially detrimental impact on a director, but not on the corporation and the stockholders.” Rales, 634 A.2d at 936. At first blush, this would seem to be a question easily answered. A majority of the CCE Board at the time the lawsuit was filed are named as Defendants. They could not be expected to make a disinterested decision about whether to sue themselves. However, the Delaware courts have clearly held that derivative action plaintiffs do not ring the futility bell merely by including a majority of the directors as defendants. The conundrum for the law in this area is well understood. If the legal rule was that demand was excused whenever, by mere notice pleading, the plaintiffs could state a breach of fiduciary duty claim against a majority of the board, the demand requirement of the law would be weakened and the settlement value of so-called “strike suits” would greatly increase, to the perceived detriment of the best interests of stockholders as investors. But, if the demand excusal test is too stringent, then stockholders may suffer as a class because the deterrence effects of meritorious derivative suits on faithless conduct may be too weak. Guttman v. Huang, 823 A.2d 492, 500 (Del.Ch.2003). When the board itself is alleged" }, { "docid": "15463957", "title": "", "text": "through a derivative suit must either first make a demand on the corporation’s directors, or plead particularized facts showing why such a demand would have been futile. See Fed. R.Civ.P. 23.1. All plaintiffs’ claims in the present action are derivative, requiring a demand on VeriSign’s Board, or a particularized showing of demand futility. State law — not Rule 23.1 — establishes the circumstances under which demand would be futile. Thus, because VeriSign is a Delaware corporation, Delaware law governs the issue of whether plaintiffs’ failure to make a pre-suit demand on VeriSign’s Board is excused. See In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 989-90 (9th Cir.1999) (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 96, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). Delaware law provides two demand-futility tests, as set forth in Aronson v. Lewis, 473 A.2d 805 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000); and Rales v. Blasband, 634 A.2d 927 (Del.1993). When the alleged wrong is the result of a business decision by the whole board of directors, a court should employ the Aron-son test, which evaluates whether, under the particularized facts alleged, a reasonable doubt is created 1) that the directors are disinterested and independent, or 2) that the challenged transaction was otherwise the product of a valid exercise of business judgment. Aronson, 473 A.2d at 812. When, however, the board members who approved the challenged act have since changed, or when the challenged act does not constitute a business decision by the board, a court should employ the Rales test, which determines whether the particularized factual allegations create a reasonable doubt that, as of the time the complaint was filed, a majority of the board as constituted at that time could have properly exercised its independent and disinterested business judgment in responding to a demand. Rales, 634 A.2d at 934. In short, [T]he right of a stockholder to prosecute a derivative suit is limited to situations where the stockholder has demanded that the directors pursue the corporate claim and they have wrongfully refused to do" }, { "docid": "11463092", "title": "", "text": "to the Morgan Stanley board, arguing that such connections preclude the directors’ exercise of independent judgment. (Id. ¶¶ 47-48.) DISCUSSION It is a long held principle of corporate law that directors manage the business of the corporation. Aronson v. Lewis, 473 A.2d 805, 811 (Del.1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.2000). Where a shareholder brings a derivative lawsuit on behalf of the corporation against the directors based on their actions or failure to act, there is a threshold question of standing, focused on whether the shareholder has exhausted in-tracorporate remedies, namely, whether the shareholder has made a demand on the board of directors. Fed.R.Civ.P. 23.1; accord Del. Ch. Ct. R. 23.1. Federal Rule of Civil Procedure 23.1 requires that the complaint “state with particularity any effort by the plaintiff to obtain the desired action from the directors ... and the reasons for not obtaining the action or not making the effort.” Id.; accord Del. Ch. Ct. R. 23.1. Because Rule 23.1 requires that Plaintiffs make particularized allegations, it imposes a pleading standard higher than the normal standard applicable to the analysis of a pleading challenged under Rule 12(b)(6). In re Trump Hotels S’holder Derivative Litig., Nos. 96 Civ. 7820 DAB, 96 Civ. 8527 DAB, 2000 WL 1371317, at *6 (S.D.N.Y. Sept.21, 2000). In the instant matter, Plaintiffs concede that they did not make a demand on the Defendants. Their standing to raise the claims on Morgan Stanley’s behalf therefore turns on the question of demand futility. The Court evaluates demand futility according to the law of the state in which the company is incorporated, and therefore applies Delaware state law here. In re Trump Hotels, 2000 WL 1371317, at *6 (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). Applicable Demand Futility Standard In Aronson v. Lewis, 473 A.2d 805 (Del. 1984), the Delaware Supreme Court held that plaintiffs seeking to establish demand futility must “plead particularized facts that create a reasonable doubt that 1) the directors aré disinterested and independent, or [that] 2) the" } ]

[ { "docid": "14228466", "title": "", "text": "already provides a remedy for his harm. But Seri-no’s claim fails for a more basic reason: he has not stated a constitutional violation independent of the alleged wrongful arrest. Remember, there is no such thing as a constitutional right not to be prosecuted without probable cause. Thus, Serino must allege something else that does amount to a constitutional violation (even if he calls it malicious prosecution). The complaint alleges that Serino “committed no crime, was unarmed, and did not pose a threat of death or grievous bodily injury to said defendants or others,” but that Hensley nonetheless arrested him. This is a claim for false arrest. Alexander v. McKinney, 692 F.3d 553, 558 (7th Cir.2012) (“The Fourth Amendment, not the due process clause, is the proper basis for challenging the lawfulness of an arrest.”); see also Albright, 510 U.S. at 273, 114 S.Ct. 807 (plurality opinion) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that. Amendment ... must be the guide for analyzing these claims.” (internal quotation marks omitted)); id. at 281, 114 S.Ct. 807 (Kennedy, J., concurring in the judgment) (agreeing that “an allegation of arrest without probable cause must be analyzed under the Fourth Amendment without reference to more general considerations of due process”). And because Serino’s was a warrantless arrest, it cannot serve as the basis for a malicious prosecution action. Malicious prosecution provides a remedy for a deprivation of liberty pursuant to legal process, Heck, 512 U.S. at 484, 114 S.Ct. 2364 — but when the arrest takes place without a warrant, the plaintiff only becomes subject to legal process afterward, at the time of arraignment. Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir.2001); accord Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir.2004). As such, we have previously rejected § 1983 plaintiffs’ attempts to recast a Fourth Amendment false arrest claim as a Fourteenth Amendment due process claim to circumvent the statute of limitations applicable to the former. See, e.g., Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir.1996);" } ]

[ { "docid": "942667", "title": "", "text": "elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); see also Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016) (explaining “[t]here can be no ‘violation’ of § 1983” because the statute “is a remedial vehicle”). Section 1983 does not allow plaintiffs to create a federal case out of “every violation of state common law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004). Accordingly, “[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker, 443 U.S. at 140, 99 S.Ct. 2689 (quoting 42 U.S.C. § 1983). 2. Fourth Amendment Malicious Prosecution Claim The Fourth Amendment provides one source of rights enforceable in a § 1983 action. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 898 (10th Cir. 2016) (addressing § 1983 claims for excessive force, unlawful entry, and unlawful seizure based on the Fourth Amendment). As the Supreme Court recently reconfirmed, the Fourth Amendment provides a basis under § 1983 for challenging pre-trial detention. Manuel v. City of Joliet, — U.S. -, 137 S.Ct. 911, 914-15, 197 L.Ed.2d 312 (2017). Manuel did not address whether the tort of malicious prosecution, as opposed to some other common law cause of action, provides an appropriate framework for these Fourth Amendment § 1983 claims. See id. at 920-22 (describing issues left on remand); see id. at 923 (Alito, J., dissenting) (stating majority had not resolved “whether a claim of malicious prosecution may be brought under the Fourth Amendment”); see also Wallace v. Koto, 549 U.S. 384, 390 n.2, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“We have never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983, and we do not do so here.” (citation omitted)). Manuel’s discussion of Fourth Amendment rights enforceable in a § 1983 action is nevertheless instructive. The Court held that § 1983 can support a Fourth Amendment claim concerning pre-trial detention even after the institu tion of “legal process,” which in Manuel was a judge’s probable" }, { "docid": "9226129", "title": "", "text": "process right exists. Second , Wright v. City of Philadelphia concluded that a plaintiff's Fourteenth Amendment claims were \"most analogous to malicious prosecution\" because they \"involved the trial process itself.\" 229 F.Supp.3d 322, 331 (E.D. Pa. 2017). At first glance, this seems to endorse the existence of a malicious prosecution claim based on the Fourteenth Amendment. But the Court's Wright decision actually was limited to a decision of whether the claims were closer to false imprisonment or to malicious prosecution for the purpose of determining the statute of limitations : Pursuant to the paradigm set up in Wallace [v. Kato , 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ], a § 1983 plaintiff's claims based on wrongful detention are either analogous to the tort of false imprisonment (if the claims are premised on wrongful detention without legal process) or the tort of malicious prosecution (if the claims are premised on wrongful detention pursuant to the wrongful use of legal process).... Here, the claims ... are most analogous to the tort of malicious prosecution, which requires a plaintiff to demonstrate the initiation and maintenance of a criminal prosecution without probable cause....Accordingly, the claims asserted ... did not accrue until Mr. Wright's criminal proceeding terminated in his favor upon his August 2016 acquittal. The entirety of Mr. Wright's Complaint, filed on September 20, 2016, was timely. Id. at 331-32. Thus, the actual discussion and ruling in Wright does not resolve the question whether the procedural due process clause supports a claim for malicious prosecution. Third , Mr. Thomas's briefing has explained why a procedural due process right against malicious prosecution makes theoretical sense. The fundamental distinction between the Fourth and Fourteenth Amendments is temporal: The Fourth Amendment's \"protection against unlawful seizures extends only until trial.\" Halsey , 750 F.3d at 291. Once trial starts, however, the Fourteenth Amendment kicks in: \"The guarantee of due process of law ... protects defendants during an entire criminal proceeding through and after trial .\" Id. (emphasis added); see also Mondragon v. Thompson , 519 F.3d 1078, 1082 (10th Cir. 2008) (\"The initial seizure" }, { "docid": "19627985", "title": "", "text": "conviction . For example, in Haring v. Prosise, 462 U.S. 306, 308, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983), the respondent pleaded guilty to a drug crime without raising any Fourth Amendment issues. He then brought a § 1983 suit, challenging the constitutionality of the search that led to the discovery of the drugs on which his criminal charge was based. The Court held that respondent's suit could proceed-despite his valid conviction. Id., at 323, 103 S.Ct. 2368 ; see also Heck, 512 U.S., at 487, n. 7, 114 S.Ct. 2364 (\"[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction\"). The favorable-termination element is similarly irrelevant to claims like Manuel's. Manuel alleges that he was arrested and held based entirely on falsified evidence. In such a case, it makes no difference whether the prosecution was eventually able to gather and introduce legitimate evidence and to obtain a conviction at trial. The unlawful arrest and detention would still provide grounds for recovery. Accordingly, there is no good reason why the accrual of a claim like Manuel's should have to await a favorable termination of the prosecution. For all these reasons, malicious prosecution is a strikingly inapt \"tort analog[y],\" Wilson, 471 U.S., at 277, 105 S.Ct. 1938 for Fourth Amendment violations. So the answer to the question presented in Manuel's certiorari petition is that the Fourth Amendment does not give rise to a malicious prosecution claim, and this means that Manuel's suit is untimely. I would affirm the Seventh Circuit on that basis. II Instead of deciding the question on which we granted review, the Court ventures in a different direction. The Court purports to refrain from deciding any issue of timeliness, see ante, at 919, but the Court's opinion is certain to be read by some to mean that every moment of pretrial confinement without probable cause constitutes a violation of the Fourth Amendment. And if that is so, it would seem to follow that" }, { "docid": "19627979", "title": "", "text": "and he is not entitled to relief. A I would first consider what I take to be the core of the question presented-whether a \"malicious prosecution claim may be brought under the Fourth Amendment.\" See ibid. Manuel asked us to decide that question because it may be critical to his ultimate success in this lawsuit. Why is that so? The statute of limitations for Manuel's claim is Illinois's general statute of limitations for personal-injury torts, see Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which requires suit to be brought within two years of the accrual of the claim, see Ill. Comp. Stat., ch. 735, § 5/13-202 (West 2010). Here is the chronology of relevant events in this case: • March 18, 2011: Manuel is arrested and brought before a county court judge, who makes the required probable-cause finding because Manuel was arrested without a warrant. • March 31, 2011: Manuel is indicted by a grand jury. • April 8, 2011: Manuel is arraigned. • May 4, 2011: An assistant state's attorney moves to dismiss the charges, and the motion is granted. • May 5, 2011: Manuel is released from jail. • April 22, 2013: Manuel files his complaint. Since the statute of limitations requires the commencement of suit within two years of accrual, Manuel's claim is untimely unless it accrued on or after April 22, 2011. And the only events in the above chronology that occurred within that time frame are the dismissal of the charge against him and his release from custody. A claim of malicious prosecution \"does not accrue until the criminal proceedings have terminated in the plaintiff's favor.\" Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ; see 3 Restatement (Second) of Torts § 653 (1976). None of the other common-law torts to which Manuel's claim might be compared-such as false arrest or false imprisonment-has such an accrual date. See Wallace, supra, at 397, 127 S.Ct. 1091 (holding that a claim for false imprisonment under the Fourth Amendment accrues when \"the claimant becomes detained" }, { "docid": "19627980", "title": "", "text": "assistant state's attorney moves to dismiss the charges, and the motion is granted. • May 5, 2011: Manuel is released from jail. • April 22, 2013: Manuel files his complaint. Since the statute of limitations requires the commencement of suit within two years of accrual, Manuel's claim is untimely unless it accrued on or after April 22, 2011. And the only events in the above chronology that occurred within that time frame are the dismissal of the charge against him and his release from custody. A claim of malicious prosecution \"does not accrue until the criminal proceedings have terminated in the plaintiff's favor.\" Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ; see 3 Restatement (Second) of Torts § 653 (1976). None of the other common-law torts to which Manuel's claim might be compared-such as false arrest or false imprisonment-has such an accrual date. See Wallace, supra, at 397, 127 S.Ct. 1091 (holding that a claim for false imprisonment under the Fourth Amendment accrues when \"the claimant becomes detained pursuant to legal process\"). Therefore, if Manuel's case is to go forward, it is essential that his claim be treated like a malicious prosecution claim. B Although the Court refuses to decide whether Manuel's claim should be so treated, the answer to that question-the one that the Court actually agreed to review-is straightforward: A malicious prosecution claim cannot be based on the Fourth Amendment. \"The first inquiry in any § 1983 suit,\" the Court has explained, is \"to isolate the precise constitutional violation with which [the defendant] is charged.\" Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In this case, Manuel charges that he was seized without probable cause in violation of the Fourth Amendment. In order to flesh out the elements of this constitutional tort, we must look for \"tort analogies.\" Wilson v. Garcia, 471 U.S. 261, 277, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Manuel says that the appropriate analog is the tort of malicious prosecution, so we should look to the elements of that tort. To" }, { "docid": "1010046", "title": "", "text": "plaintiff would be unable to prove the lack-of-probable-cause element of a malicious-prosecution claim even in such cases. Moreover, the Supreme Court’s recent decision in Manuel v. Joliet, No. 14-9496, — U.S. —, 137 S.Ct. 911, 197 L.Ed.2d 312, 2017 WL 1050976 (U.S. Mar. 21, 2017), considered and rejected the argument that either a judge’s finding of probable cause or “a grand jury indictment or preliminary examination” forecloses a Fourth Amendment claim arising from unlawful pretrial detention. Id., 137 S.Ct. at 920 n.8, 2017 WL 1050976 at *6 n.8 (holding that plaintiff could pursue a § 1983 claim for unlawful pretrial detention, and that the Fourth Amendment properly governed such a claim, where he spent forty-eight days in jail “based entirely on made-up evidence” that a vitamin bottle in his possession actually contained illegal drugs, 137 S.Ct. at 915, 916, 2017 WL 1050976 at *3, *4, even though a judge found there was probable cause for the charge on the day of arrest, and even though a grand jury returned an indictment twelve days later). The Court in Manuel went on: “Whatever its precise form, if the proceeding [finding probable cause] is tainted — as here, by fabricated evidence — and the result is that probable cause is lacking, then the ensuing pretrial detention violates the confined person’s Fourth Amendment rights.” Ibid. Second, maintaining the viability of malicious-prosecution claims against officers who 'wrongly set prosecutions in motion is rooted in the common-law distinction of “complaining witnesses,” who — unlike testifying witnesses — were not afforded absolute immunity, as Rehberg details at length. Rehberg, 566 U.S. at 370-73, 132 S.Ct. 1497 (discussing grand-jury witnesses, who testify before the grand jury, and “complaining witnesses” who “set the wheels of government in motion by instigating an action”; “a mid-19th-century complaining witness might testify, either before a grand jury or at trial. But testifying was not a necessary characteristic of a ‘complaining witness.’ ”); see also Kalina, 522 U.S. at 135, 118 S.Ct. 502 (Scalia, J., concurring) (“a ‘complaining witness’ could be sued for malicious prosecution whether or not he ever provided factual testimony, so" }, { "docid": "19627964", "title": "", "text": "that following the same rule in suits like his will avoid \"conflicting resolutions\" in § 1983 litigation and criminal proceedings by \"preclud[ing] the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution.\" Id., at 484, 486, 114 S.Ct. 2364 ; see Reply Brief 10-11; Brief for United States as Amicus Curiae 24-25, n. 16. In support of Manuel's position, all but two of the ten Courts of Appeals that have recognized a Fourth Amendment claim like his have incorporated a \"favorable termination\" element and so pegged the statute of limitations to the dismissal of the criminal case. See n. 4, supra . That means in the great majority of Circuits, Manuel's claim would be timely. The City, however, contends that any such Fourth Amendment claim accrues (and the limitations period starts to run) on the date of the initiation of legal process-here, on March 18, 2011, more than two years before Manuel filed suit. See Brief for Respondents 33. According to the City, the most analogous tort to Manuel's constitutional claim is not malicious prosecution but false arrest, which accrues when legal process commences. See Tr. of Oral Arg. 47; Wallace, 549 U.S., at 389, 127 S.Ct. 1091 (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City continues, a court should decline to adopt that tort's favorable-termination element and associated accrual rule in adjudicating a § 1983 claim involving pretrial detention. That element, the City argues, \"make[s] little sense\" in this context because \"the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.\" Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alternative theory for treating his date of release as the date of accrual: to wit, that his pretrial detention \"constitute[d] a continuing Fourth Amendment violation,\" each day of which triggered the statute of limitations anew. Id., at 29, and n. 6; see Tr. of Oral Arg. 36; see also Albright, 510 U.S., at 280, 114 S.Ct." }, { "docid": "9226130", "title": "", "text": "prosecution, which requires a plaintiff to demonstrate the initiation and maintenance of a criminal prosecution without probable cause....Accordingly, the claims asserted ... did not accrue until Mr. Wright's criminal proceeding terminated in his favor upon his August 2016 acquittal. The entirety of Mr. Wright's Complaint, filed on September 20, 2016, was timely. Id. at 331-32. Thus, the actual discussion and ruling in Wright does not resolve the question whether the procedural due process clause supports a claim for malicious prosecution. Third , Mr. Thomas's briefing has explained why a procedural due process right against malicious prosecution makes theoretical sense. The fundamental distinction between the Fourth and Fourteenth Amendments is temporal: The Fourth Amendment's \"protection against unlawful seizures extends only until trial.\" Halsey , 750 F.3d at 291. Once trial starts, however, the Fourteenth Amendment kicks in: \"The guarantee of due process of law ... protects defendants during an entire criminal proceeding through and after trial .\" Id. (emphasis added); see also Mondragon v. Thompson , 519 F.3d 1078, 1082 (10th Cir. 2008) (\"The initial seizure is governed by the Fourth Amendment, but at some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due Process Clause.\"). This temporal distinction suggests that a procedural due process right against malicious prosecution may exist. However, this was, and indeed remains, an unsettled question, meaning that Mr. Thomas fails to overcome the defense of qualified immunity, discussed next. B. Qualified Immunity In order to hold a government official liable under § 1983, the right claimed by the plaintiff must have been clearly established at the time of the alleged violation. See, e.g. , Ashcroft v. Al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ; Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The procedural due process right against malicious prosecution is not clearly established. The Supreme Court has not yet articulated such a right. And the Third Circuit Court of Appeals stopped short of deciding the right's \"viability\" in 2014, let alone in the early 1990s" }, { "docid": "5216284", "title": "", "text": "that because Myers premised the claim on a violation of the Fourth Amendment it was “in the nature of false imprisonment” and accrued on the date of his release. App. vol. 1, at 32-33. In fact, here, as in Wilkins, detention occurred after the institution of legal process. Myers was arrested pursuant to a validly issued — if not validly supported— arrest warrant. “[T]he issuance of an arrest warrant represents a classic example of the institution of legal process.” Wilkins, 528 F.3d at 799. Myers’ suit, then, challenges the probable — cause determination that generated the legal process. As we said in Wilkins, “This link supplies the necessary connection between the malicious prosecution cause of . action and Plaintiffs’ Fourth Amendment allegations.” Id. Koopman attempts to repurpose Wilkins. He contends that even if this is a malicious-prosecution claim, it accrued upon the institution of legal process. To do so, he plucks one statement from Wilkins: “[Detention was thus preceded by the institution of legal process, triggering the malicious prosecution cause of action.” Id. Read in context, however, it is clear the institution of legal process “triggers” a malicious-prosecution claim only in the sense that a claim before (or without) the institution of legal process would be for false imprisonment. Id. at 798-99. Koop-man’s reading would set this Court against the “the standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (alteration in original) (quotations omitted). A malicious-prosecution claim is not cognizable until all the eléments are satisfied, and one of the elements is that the original action terminated in favor of the plaintiff. Wilkins, 528 F.3d at 799. As such, this Court has held that a malicious-prosecution claim does not accrue until proceedings terminate in the plaintiffs favor. Mondragon, 519 F.3d at 1083. The district court adopted the wrong analogy because it overlooked a pivotal detail — Myers’ detention occurred after the institution of legal process. In fact, Myers properly stated a Fourth Amendment claim for malicious prosecution, which accrued on November 15, 2007, when" }, { "docid": "8193461", "title": "", "text": "then arrested the plaintiff pursuant to that warrant. The claim in this case is' strictly for abuse of the legal process; the complaint does not allege that McQueen or the Quest investigators effectuated the arrests of Bianchi and his colleagues, The second problem is that Juriss predates Wallace, which more clearly demarcated the lines between the cognizable constitutional torts in cases alleging wrongful arrest and prosecution. As we’ve already explained, the arrests at issue in this case came after and as a consequence of the formal initiation of criminal proceedings by indictment. Wallace teaches that once formal criminal proceedings have begun, we’re in the domain of malicious prosecution, not false arrest. And as a factual matter, the gravamen of the allegations against McQueen and the investigators is abuse of the formal legal process. . The Supreme Court has recently granted certiorari to address whether a claim for malicious prosecution is cognizable under the Fourth Amendment where the plaintiff alleges that he was held in pretrial detention without probable cause. See Manuel v. City of Joliet, 590 Fed.Appx. 641 (7th Cir.2015), cert. granted — U.S. -, 136 S.Ct. 890, 193 L.Ed.2d 783 (Jan. 15, 2016) (No. 14-9496), Manuel will be heard next term. The Court’s decision will not affect this case; here the plaintiffs were not held in pretrial detention. . With the federal claims gone, it was entirely appropriate for the judge to relinquish jurisdiction over the state-law claims and dismiss them without prejudice. See Sharp Elec. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514 (7th Cir.2009) (\"Normally, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims____”)." }, { "docid": "21503710", "title": "", "text": "the Fourth Amendment right to be free from unreasonable seizures, we analyze the elements of their claim in light of Fourth Amendment guarantees. Unlike a false arrest or false imprisonment claim, malicious prosecution concerns detention only “[a]fter the institution of legal process.” Mondragon v. Thompson; 519 F.3d 1078, 1083 (10th Cir.2008); see also Wallace v. Kato, — U.S. -, 127 S.Ct. 1091, 1096, 166 L.Ed.2d 973 (2007) (“[A]fter [institution of legal process], unlawful detention forms part of the damages for the ... tort of malicious prosecution, which remedies detention accompanied not by absence of legal process, but by wrongful institution of legal process.”). In this context, a Fourth Amendment violation can exist only when a plaintiff alleges the legal process itself to be wrongful. If a plaintiff challenges merely the confinement after the institution of legal process, but not the process itself, “[t]he protections offered by the Fourth Amendment do not apply.” Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir.2000); see also Taylor v. Waters, 81 F.3d 429, 436 (4th Cir.1996) (“[Determination of probable cause by detached judicial officer that complies with Fourth Amendment constitutes all of the process due in order to constitutionally detain an accused pending trial.”) (citing Baker v. McCollan, 443 U.S. 137, 142-46, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Depending on the circumstances of the arrest, a plaintiff can challenge the institution of legal process as wrongful in one of two ways. If arrested without a warrant — and thus triggering “the Fourth Amendment require[ment of] a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) — a plaintiff can challenge the probable cause determination made during the constitutionally-required probable cause hearing. See, e.g., Reed v. City of Chicago, 77 F.3d 1049, 1053-54 (7th Cir.1996) (concluding the plaintiff failed to state a malicious prosecution claim when he challenged only the warrantless arrest, but not the subsequent institution of legal process). Or, if arrested pursuant to a warrant, plaintiff can challenge the probable" }, { "docid": "942668", "title": "", "text": "basis under § 1983 for challenging pre-trial detention. Manuel v. City of Joliet, — U.S. -, 137 S.Ct. 911, 914-15, 197 L.Ed.2d 312 (2017). Manuel did not address whether the tort of malicious prosecution, as opposed to some other common law cause of action, provides an appropriate framework for these Fourth Amendment § 1983 claims. See id. at 920-22 (describing issues left on remand); see id. at 923 (Alito, J., dissenting) (stating majority had not resolved “whether a claim of malicious prosecution may be brought under the Fourth Amendment”); see also Wallace v. Koto, 549 U.S. 384, 390 n.2, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (“We have never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983, and we do not do so here.” (citation omitted)). Manuel’s discussion of Fourth Amendment rights enforceable in a § 1983 action is nevertheless instructive. The Court held that § 1983 can support a Fourth Amendment claim concerning pre-trial detention even after the institu tion of “legal process,” which in Manuel was a judge’s probable cause determination at the first appearance of the defendant (who later became the § 1983 plaintiff). Manuel, 137 S.Ct. at 914-15, 919-20 (majority opinion). We have said “the issuance of an arrest warrant” is “a classic example of the institution of legal process.” Wilkins, 528 F.3d at 799. Although the Supreme Court has not addressed whether a § 1983 malicious prosecution claim can be used to enforce Fourth Amendment rights, “[w]e have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be the Fourth Amendment’s right to be free from unreasonable seizures.” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (quotations omitted); accord Sanchez v. Hartley, 810 F.3d 750, 755 (10th Cir. 2016) (citing cases). Under our case law, whether a malicious prosecution claim for pre-trial detention can be brought depends on the initiation of legal process. “Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. Unreasonable seizures imposed with legal process precipitate Fourth" }, { "docid": "19627960", "title": "", "text": "arrested Manuel without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance. So (putting timeliness issues aside) Manuel could bring a claim for wrongful arrest under the Fourth Amendment. And the same is true (again, disregarding timeliness) as to a claim for wrongful detention-because Manuel's subsequent weeks in custody were also unsupported by probable cause, and so also constitutionally unreasonable. No evidence of Manuel's criminality had come to light in between the roadside arrest and the County Court proceeding initiating legal process; to the contrary, yet another test of Manuel's pills had come back negative in that period. All that the judge had before him were police fabrications about the pills' content. The judge's order holding Manuel for trial therefore lacked any proper basis. And that means Manuel's ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel's Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention-probable cause to believe he committed a crime. III Our holding-that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process-does not exhaust the disputed legal issues in this case. It addresses only the threshold inquiry in a § 1983 suit, which requires courts to \"identify the specific constitutional right\" at issue. Albright, 510 U.S., at 271, 114 S.Ct. 807. After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation. See, e.g., Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Here, the parties particularly disagree over the accrual date of Manuel's Fourth Amendment claim-that is, the date on which the applicable two-year statute of limitations began to run. The timeliness of Manuel's suit hinges on the choice between their proposed dates. But with the following brief comments, we remand that issue to the court below. In defining the contours and prerequisites of a §" }, { "docid": "5541210", "title": "", "text": "266, 126 S.Ct. 1695, the plaintiff argued to Judge Mitchell that she could not prove the element of absence of probable cause until after the dismissal of the charges, see 2009 WL 790355, at *4. Judge Mitchell found: “Plaintiff has raised a valid point: her First Amendment retaliatory prosecution claim did not accrue until the charges against her had been dismissed.” 2009 WL 790355, at *4. The Court does not find this determination persuasive. A probable-cause evaluation looks objectively at the facts and circumstances within an officer’s knowledge at the time the criminal charges were filed.' See Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir.1985). While a conviction by a magistrate or trial court may establish probable cause, “[t]he fact that the accused was acquitted after trial by a magistrate or court is properly regarded as immaterial in determining the existence or nonexistence of probable cause.” Restatement (Second) of Torts § 667. Proof of the absence of probable cause does not require adjudication on the underlying case, and therefore should not be the determinative factor for accrual of a First-Amendment retaliation claim. LAW REGARDING MALICIOUS PROSECUTION UNDER THE FOURTH AMENDMENT. The Tenth Circuit “has recognized the viability of malicious prosecution claims under § 1983.” Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir.1996). To establish a malicious-prosecution claim under § 1983, a plaintiff must prove that the defendant initiated or continued a proceeding against him without probable cause. See Becker v. Kroll, 494 F.3d 904, 913-14 (10th Cir.2007). “Unlike a false arrest or false imprisonment claim, malicious prosecution concerns detention only after the institution of legal process.” Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir.2008) (internal quotation omitted). “In this context, a Fourth Amendment violation can exist only when a plaintiff alleges the legal process itself to be wrongful.” Id. Under Tenth Circuit case law, a § 1983 malicious prosecution claim includes the following elements: (i) the defendant caused the plaintiffs continued confinement or prosecution; (ii) the original action terminated in favor of the plaintiff; (iii) no probable cause supported the original arrest, continued confinement, or prosecution; (iv)" }, { "docid": "5216282", "title": "", "text": "prosecution because he was seized after the institution of legal process. The applicable statute of limitations is two years for both false imprisonment and malicious prosecution, but the two claims do not accrue simultaneously. A claim of false imprisonment accrues when the alleged false imprisonment ends. Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). A claim of malicious prosecution does not accrue until the criminal proceedings have terminated ’ in the plaintiffs favor. See Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Robinson v. Maruffi, 895 F.2d 649, 654-55 (10th Cir.1990). Myers filed his complaint on November 5, 2009 — within two years of the malicious prosecution accrual date, but not within two years of the false imprisonment accrual date. What separates the two claims? — the institution of legal process. Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. See Wallace, 549 U.S. at 389, 127 S.Ct. 1091 (concluding that false imprisonment was the proper analogy where defendants did not have a warrant for the plaintiffs arrest and thus detention occurred without legal process). Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims. See Heck, 512 U.S. at 484, 114 S.Ct. 2364 (where detention occurs with legal process the “common-law cause of action for malicious prosecution provides the closest analogy”). Like rain and snow, the claims emanate from the same source, but under different conditions. In Wilkins v. DeReyes, we employed the legal-process distinction. 528 F.3d 790 (10th Cir.2008). DeReyes allegedly obtained an arrest warrant for Wilkins based on fabricated evidence gathered by using coercive interrogation techniques. Id. at 793-94. This Court said that where detention occurs after the institution of legal process, a plaintiff can claim that the legal process itself was wrongful, and thereby state a “Fourth Amendment violation sufficient to support a § 1983 malicious prosecution cause of action.” Id. at 799. Here, the district court did not consider whether Myers had been imprisoned before or after the institution of legal process. Instead, apparently overlooking Wilkins, it simply assumed" }, { "docid": "942669", "title": "", "text": "cause determination at the first appearance of the defendant (who later became the § 1983 plaintiff). Manuel, 137 S.Ct. at 914-15, 919-20 (majority opinion). We have said “the issuance of an arrest warrant” is “a classic example of the institution of legal process.” Wilkins, 528 F.3d at 799. Although the Supreme Court has not addressed whether a § 1983 malicious prosecution claim can be used to enforce Fourth Amendment rights, “[w]e have repeatedly recognized in this circuit that, at least prior to trial, the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be the Fourth Amendment’s right to be free from unreasonable seizures.” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (quotations omitted); accord Sanchez v. Hartley, 810 F.3d 750, 755 (10th Cir. 2016) (citing cases). Under our case law, whether a malicious prosecution claim for pre-trial detention can be brought depends on the initiation of legal process. “Unreasonable seizures imposed without legal process precipitate Fourth Amendment false imprisonment claims. Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims.” Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013) (emphasis added) (citation omitted). As mentioned above, our precedent recognizes five elements for a Fourth Amendment malicious prosecution claim under § 1983: (1) the defendant caused the plaintiffs continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages. Wilkins, 528 F.3d at 799. In a case like this one where the arrest was based on a warrant, the third element concerns the probable cause determination at the time the warrant was issued and thus supplies the link to legal process. Id. (describing “the issuance of an arrest warrant” as “a classic example of the institution of legal process”). The plaintiffs challenge to the process (not merely the confinement) is the mark of a malicious prosecution claim. See id. at 798. “A malicious-prosecution claim is not cognizable until all the elements are satisfied,” and in" }, { "docid": "5541211", "title": "", "text": "factor for accrual of a First-Amendment retaliation claim. LAW REGARDING MALICIOUS PROSECUTION UNDER THE FOURTH AMENDMENT. The Tenth Circuit “has recognized the viability of malicious prosecution claims under § 1983.” Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir.1996). To establish a malicious-prosecution claim under § 1983, a plaintiff must prove that the defendant initiated or continued a proceeding against him without probable cause. See Becker v. Kroll, 494 F.3d 904, 913-14 (10th Cir.2007). “Unlike a false arrest or false imprisonment claim, malicious prosecution concerns detention only after the institution of legal process.” Wilkins v. DeReyes, 528 F.3d 790, 798 (10th Cir.2008) (internal quotation omitted). “In this context, a Fourth Amendment violation can exist only when a plaintiff alleges the legal process itself to be wrongful.” Id. Under Tenth Circuit case law, a § 1983 malicious prosecution claim includes the following elements: (i) the defendant caused the plaintiffs continued confinement or prosecution; (ii) the original action terminated in favor of the plaintiff; (iii) no probable cause supported the original arrest, continued confinement, or prosecution; (iv) the defendant acted with malice; and (v) the plaintiff sustained damages. See Wilkins v. DeReyes, 528 F.3d at 799. In a Fourth-Amendment malicious-prosecution case, “the third element deals only with the probable cause determination during the institution of legal process----” Id. 1. The Seizure Requirement of Fourth Amendment Malicious Prosecution Claims. When a malicious-prosecution claim is based upon the Fourth Amendment, a plaintiff must — to prevail' — prove that he was also seized. See Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1165 (10th Cir.2009) (citing Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)(plurality)); Becker v. Kroll, 494 F.3d 904, 914 (10th Cir.2007) (“In our cases analyzing malicious prosecution under § 1983, we have always proceeded based on a seizure by the state— arrest or imprisonment.”). The Tenth Circuit recently addressed the scope of seizure under Fourth Amendment malicious prosecution claims in Becker v. Kroll. Becker was a physician subjected to a baseless investigation and prosecution for Medicaid fraud. Her records were subpoenaed, and she was threatened" }, { "docid": "19627986", "title": "", "text": "trial. The unlawful arrest and detention would still provide grounds for recovery. Accordingly, there is no good reason why the accrual of a claim like Manuel's should have to await a favorable termination of the prosecution. For all these reasons, malicious prosecution is a strikingly inapt \"tort analog[y],\" Wilson, 471 U.S., at 277, 105 S.Ct. 1938 for Fourth Amendment violations. So the answer to the question presented in Manuel's certiorari petition is that the Fourth Amendment does not give rise to a malicious prosecution claim, and this means that Manuel's suit is untimely. I would affirm the Seventh Circuit on that basis. II Instead of deciding the question on which we granted review, the Court ventures in a different direction. The Court purports to refrain from deciding any issue of timeliness, see ante, at 919, but the Court's opinion is certain to be read by some to mean that every moment of pretrial confinement without probable cause constitutes a violation of the Fourth Amendment. And if that is so, it would seem to follow that new Fourth Amendment claims continue to accrue as long as the pretrial detention lasts. A That proposition-that every moment in pretrial detention constitutes a \"seizure\"-is hard to square with the ordinary meaning of the term. The term \"seizure\" applies most directly to the act of taking a person into custody or otherwise depriving the person of liberty. It is not generally used to refer to a prolonged detention. Dictionary definitions from around the time of the adoption of the Fourth Amendment define the term \"seizure\" as a single event-and not a continuing condition. See, e.g., 2 N. Webster, An American Dictionary of the English Language 67 (1828) (Webster) (defining \"seizure\" as \"the act of laying hold on suddenly\"); 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785) (defining \"seizure\" as \"the act of taking forcible possession\"); 1 T. Dyche & W. Pardon, A New General English Dictionary (14th ed. 1771) (defining \"seize\" as \"to lay or take hold of violently or at unawares, wrongfully, or by force\"). As the Court has explained" }, { "docid": "19627965", "title": "", "text": "tort to Manuel's constitutional claim is not malicious prosecution but false arrest, which accrues when legal process commences. See Tr. of Oral Arg. 47; Wallace, 549 U.S., at 389, 127 S.Ct. 1091 (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City continues, a court should decline to adopt that tort's favorable-termination element and associated accrual rule in adjudicating a § 1983 claim involving pretrial detention. That element, the City argues, \"make[s] little sense\" in this context because \"the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.\" Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alternative theory for treating his date of release as the date of accrual: to wit, that his pretrial detention \"constitute[d] a continuing Fourth Amendment violation,\" each day of which triggered the statute of limitations anew. Id., at 29, and n. 6; see Tr. of Oral Arg. 36; see also Albright, 510 U.S., at 280, 114 S.Ct. 807 (GINSBURG, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. \"[W]e are a court of review, not of first view.\" Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Because the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here. On remand, the Court of Appeals should decide that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1-2 (addressing the possibility of waiver); Tr. of Oral Arg. 40-44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel's Fourth Amendment claim for unlawful pretrial" }, { "docid": "9019605", "title": "", "text": "Cir. 2001) (\"The statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state.\"). \"In Texas, the applicable limitations period is two years.\" Gartrell v. Gaylor , 981 F.2d 254, 256 (5th Cir. 1993) ; see Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (\"[A] person must bring suit ... not later than two years after the day the cause of action accrues.\"). But \"the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.\" Wallace , 549 U.S. at 388, 127 S.Ct. 1091. \"In defining the contours and prerequisites of a § 1983 claim, including its rule of accrual, courts are to look first to the common law of torts.\" Manuel , 137 S.Ct. at 920. The accrual date depends on whether Junior's claim more closely resembles one for false imprisonment or one for malicious prosecution. See id. at 921-22 (remanding the case to the Seventh Circuit to consider whether the claim was more like a false imprisonment or a malicious prosecution). A false-imprisonment claim is based upon \"detention without legal process.\" Wallace, 549 U.S. at 389, 127 S.Ct. 1091. It \"begins to run at the time the claimant becomes detained pursuant to legal process.\" Id. at 397, 127 S.Ct. 1091. A malicious-prosecution claim is based upon \"detention accompanied ... by wrongful institution of legal process.\" Id. at 390, 127 S.Ct. 1091. It \"does not accrue until the prosecution ends in the plaintiff's favor.\" Castellano , 352 F.3d at 953. Johnson urges us to find that this case fits within Wallace v. Kato . There, the Supreme Court found that the plaintiff's unlawful warrantless-arrest Fourth Amendment claim resembled a false-imprisonment claim, because the constitutional violation occurred when the plaintiff was arrested without a warrant instead of when the conviction was later set aside. 549 U.S. at 397, 127 S.Ct. 1091. Law enforcement officers transported the fifteen-year-old plaintiff to a police station-without a warrant or probable cause to arrest him-and interrogated" } ]

[ { "docid": "22343894", "title": "", "text": "punishment of the child might encourage the parents to marry. If that is the State’s objective, it can obviously be attained far more directly by focusing on the parents whose actions the State seeks to influence. Given the importance and nature of the decision to marry, cf. Boddie v. Connecticut, ante, p. 371, I think that disinheriting the illegitimate child must be held to “bear no intelligible proper relation to the consequences that are made to flow” from the State’s classification. Glona v. American Guarantee & Liability Insurance Co., 391 U. S., at 81 (Harlan, J., dissenting). In my judgment, only a moral prejudice, prevalent in 1825 when the Louisiana statutes under consideration were adopted, can support Louisiana’s discrimination against illegitimate children. Since I can find no rational basis to justify the distinction Louisiana creates between an acknowledged illegitimate child and a legitimate one, that discrimination is clearly invidious. Morey v. Doud, 354 U. S. 457 (1957). I think the Supreme Court of North Dakota stated the correct principle in invalidat ing an analogous discrimination in that State’s inheritance laws: “This statute, which punishes innocent children for their parents’ transgressions, has no place in our system of government, which has as one of its basic tenets equal protection for all.’’ In re Estate of Jensen, 162 N. W. 2d 861, 878 (1968). Louisiana law appears to direct that the birth certificate be changed only when the child has been legitimated. La. Rev. Stat. §40:308 (1950). La. Civ. Code Ann., Art. 242 (1952). See Part II, infra. In addition, the trial court, despite uncontradicted testimony that the child required $192 per month for support, rejected the claim for alimony from her father’s estate, as provided in Louisiana law, La. Civ. Code Ann., Arts. 240-242, 243, 919 (1952), on the ground that the child was receiving $100 per month in Social Security and Veterans Administration benefits. La. Civ. Code Ann., Art. 1495 (1952), provides: “In the cases prescribed by the two last preceding articles [legitimate children and parents], the heirs are called forced heirs, because the donor can not deprive them of" } ]

[ { "docid": "22777938", "title": "", "text": "neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met. We concluded that the Illinois statute discriminated against illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U. S. 495, 506 (1976), and reaffirmed in Trimble, supra, at 767, classifications based on illegitimacy are not subject to “strict scrutiny,” they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test. Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent’s property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing “only the most attenuated relationship to the asserted goal.” Trimble, supra, at 768. We again rejected the argument that “persons will shun illicit relations because the offspring may not one day reap the benefits” that would accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 173 (1972). The statute therefore was not defensible as an incentive to enter legitimate family relationships. Illinois’ interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising “an appropriate legal framework” in the furtherance of that interest “is a matter particularly within the competence of the individual States.” Trimble, supra, at 771. An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, at 270-271. These difficulties, we said, “might justify a more demanding standard for illegitimate children claiming under their fathers’ estates" }, { "docid": "5007655", "title": "", "text": "that these cases divide primarily along two lines: (1) classification schemes which use illegitimacy as a basis for discriminating between one group and another; and (2) gender-based discriminations. In the illegitimacy field, the Court appears to have taken a wavering course in the review of classifications based on that status and while it has invalidated some illegitimacy classifications which would seem capable of surviving deferential standards of the old equal protection standard of review, it has rejected challenges in other cases. On the one hand, we have recent eases such as Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), which have sustained Social Security Act provisions disadvantaging illegitimates, while on the other, we have cases such as Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), which have invalidated classifications based on illegitimacy. In Trimble, the Court observed that classifications based on illegitimacy must be “ ‘carefully attuned to alternative considerations.’ ” Id. at 772, 97 S.Ct. at 1466, quoting Lucas, supra, 427 U.S. at 513, 96 S.Ct. 2755. The Court went on to clearly indicate that although it was not scrutinizing the statute as closely as it would if a fundamental interest or a suspect classification was involved, its review would nevertheless not be a “toothless one.” Id. at 767, 97 S.Ct. 1459, quoting Lucas, supra, at 510, 96 S.Ct. 2755. And although the Court applied the “rational-basis” standard of review to this classification system, it nevertheless found that when “ ‘state statutory classifications approach sensitive and fundamental personal rights, this Court exercises a stricter scrutiny. . . .’’’Id. 430 U.S. at 767, 97 S.Ct. at 1463, quoting Weber v. Casualty & Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Thus, although the Court used the traditional language of the rational-basis standard of review, its examination of not only the ends but also the means utilized to further those ends clearly manifested a trend toward an intermediate standard of scrutiny in equal protection analysis, more deferential than strict scrutiny, but nevertheless more exacting than the" }, { "docid": "3557296", "title": "", "text": "protection clause means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances. Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 549, 43 S.Ct. 636, 638, 67 L.Ed. 1112 (1923). In reviewing economic and social regulation under the equal protection clause, restraint should be exercised. Such legislation is invested with a presumption of constitutionality, and it is required that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state interest or purpose. Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Only if a suspect group or fundamental interest is involved does the degree of scrutiny which the court applies rise to the level of strict scrutiny. In determining whether a class is suspect, the court traditionally looks for an indication that the class is saddled with such disabilities or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. San Antonio School District v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973). Suspect classifications deserving of special scrutiny include those based on race, national origin or religion, New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), alienage, Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), and sex, Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977). On the other hand, illegitimate children, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), indigent women desiring abortions, Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977), veterans, Cleland v. National College of Business, 435 U.S. 213, 98 S.Ct. 1024, 55 L.Ed.2d 225 (1978), and conscientious objectors, Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) have been held by the Supreme Court not to be suspect classifications. The Tenth Circuit Court of" }, { "docid": "16537067", "title": "", "text": "MURNAGHAN, Circuit Judge: In Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981), vacated sub nomine Jones v. Heckler,-U.S.-, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983), we had for decision the question of whether a child whose parents were not married would, under the provisions of 42 U.S.C. § 416(h)(2)(A), qualify as a dependent entitled to certain social security benefits. The statute establishes that one is qualified if, for the purposes of taking in intestacy, he would be entitled to share according to “such law as would be applied in determining the devolution of intestate personal property by the courts of the State ... in which he [the wage earner parent] was domiciled at the time of his death....” The case concerned children of deceased fathers who were residents of West. Virginia (Simms) and of Mississippi (Jones). The intestacy statutes provided unequal treatment as between those children deemed “legitimate” and those deemed “illegitimate,” the disadvantage being borne, as one might expect, given the historical background, by the latter. The Jones and Simms children, under the language of the state statutes were excluded from rights to take in intestacy which they would have enjoyed had they satisfied the statutory requirement of “legitimacy.” As of the time of our decision we were unaware of any decision ruling on the constitutionality of the two statutes. Nevertheless, we proceeded. on the assumption that, in light of the decision in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the West Virginia and Mississippi statutes were each unconstitutional because of the denial of the equal protection mandated by the Fourteenth Amendment to the Federal Constitution. We decided that unconstitutionality because of a provision of the federal basic law would not convert a state statute into one actually providing the opposite of what its language required, in order to eliminate the unconstitutional inequality. We reached that result on the theory that 42 U.S.C. § 416(h)(2)(A) was intended to allow any one determined by the legislature to be entitled to inherit under the state’s intestacy laws to qualify for social security benefits, assuming, as" }, { "docid": "18667499", "title": "", "text": "showing that he is in fact dependent on the deceased parent. Mathews v. Lucas, 427 U.S. 495, 499, 96 S.Ct. 2755, 2759, 49 L.Ed.2d 651 (1976). See also, Jiminez v. Weinberger, 417 U.S. 628, 635-36, 94 S.Ct. 2496, 2501-02, 41 L.Ed.2d 363 (1974). The Secretary determined that plaintiff failed to establish entitlement to benefits under any of the applicable eligibility tests. Because the deceased was domi ciled in Missouri at the time of his death, the Secretary had to examine the Missouri intestate laws to determine if plaintiff would be entitled to inherit from the deceased. The Government points out in its memorandum in support of its motion for summary affirmance that under Missouri law, an illegitimate child can inherit only through his mother. The applicable section is Mo.Rev.Stat. § 474.060 (1978) which provides as follows: “Illegitimate children are capable of inheriting and transmitting inheritance on the part of their mother, and a mother may inherit from her illegitimate children, in like manner as if they had been lawfully begotten of her.” Furthermore, an illegitimate may inherit from his father only if the parents intermarry and the father recognizes the child to be his. Mo.Rev. Stat. § 474.070 (1978). In that situation, of course, the child is no longer illegitimate. What both the Government and plaintiff’s attorney neglected to point out is that this statute clearly is unconstitutional. In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court held unconstitutional § 12 of the Illinois Probate Act, virtually identical to the statutes involved here, which allowed illegitimate children to inherit by intestate succession only from their mothers. That statute also provided that “a child who was illegitimate whose parents inter-marry and who is acknowledged by the father as the father’s child is legitimate.” The Court held that the total statutory disinheritance of illegitimate children whose fathers die intestate was not rationally related to the promotion of a legitimate state interest. The Court objected to the requirement of intermarriage as an absolute precondition to inheritance. Imposing disabilities on the illegitimate child is contrary to" }, { "docid": "10022779", "title": "", "text": "Israel for 18, Adoption of Children Law 5720-1960, No. 45, § 27(3), 14 Laws of the State of Israel 93, 97 (1960) (adoptee at age 18). . The Children Act, 1975, c. 72, § 26 (adoptee at age 18), amending the Adoption Act, 1958, 7-8 Eliz. II, c. 5, § 20(5). See Levin, Tracing the Birth Records of Adopted Persons, 7 J.Fam.L. 104 (1977). . Appellants speak in terms of a “suspect class,” relying on Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (illegitimacy “analogous to” suspect class, but not sufficiently so as to require “our most exacting scrutiny”), and arguing that the sealed records laws treat them worse than illegitimates. See also Mathews v. Lucas, 427 U.S. 495, 505, 506, 510, 95 S.Ct. 431, 50 L.Ed.2d 397 (1976); Craig v. Boren, 429 U.S. 190, 210-11, 97 S.Ct. 451, 50 L.Ed.2d 397 n. * (1976) (Powell, J., concurring). Professor Tribe has put it: Although indicating that he “would not welcome a further subdividing of equal protection analysis,” Justice Powell, concurring in Craig v. Boren, acknowledged that “[t]here are valid reasons for dissatisfaction with the ‘two-tier’ approach that has been prominent in the Court’s [equal protection] decisions in the past decade,” and added that “candor compels the recognition that the relatively deferential ‘rational basis’ standard of review normally applied takes on a sharper focus when we address a gender-based classification.” The Justice might well have added that a growing range of cases, involving classifications other than gender and involving a number of important but not “constitutionally fundamental” interests, have likewise triggered forms of review poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny — intermediate forms of review which Justice Powell must have had in mind when he spoke of “sharper focus.” L. Tribe, American Constitutional Law § 16-30, at 1082 (1978) (footnotes omitted). . There are at least six recognized exceptions. The Amendment itself describes the first punishment for crime. Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897), cites" }, { "docid": "22155326", "title": "", "text": "the validity of the statutes. Lalli v. Lalli, 439 U. S. 259; Mathews v. Lucas, 427 U. S. 495; Labine v. Vincent, 401 U. S. 532. The constitutionality of the legitimation provision of the Georgia statute has not been challenged and is not at issue in this ease. As Mr. Justice Powell stated for the plurality in the Lalli case: “That the child is the child of a particular woman is rarely difficult to prove. Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.” 439 U. S., at 268-269. (Citations omitted.) In Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73, the Court held that a Louisiana statute that did not allow a natural mother of an illegitimate child to sue for its wrongful death violated the Equal Protection Clause. That cause was quite different from this one. The invidious discrimination perceived in that ease was between married and unmarried mothers. There thus existed no real problem of identity or of fraudulent claims. See Part IV, infra. Moreover, the statute in Olona excluded every mother of an illegitimate child from bringing a wrongful-death action while the Georgia statute at issue here excludes only those fathers who have not legitimated their children. Thus, the Georgia statute has in effect adopted “a middle ground between the extremes of complete exclusion and case-by-case determination of paternity.” Trimble v. Gordon, 430 U. S. 762, 771. Cf. Lalli v. Lalli, supra. We need not decide whether a statute which completely precluded fathers, as opposed to mothers, of illegitimate children from maintaining a wrongful-death action would violate the Equal Protection Clause. See n. 2, supra. The ability of a father to make his child legitimate under Georgia law distinguishes this case from Caban v. Mohammed, post, p. 380," }, { "docid": "16592183", "title": "", "text": "out of wedlock, he shall be considered the child of his mother but not of his father.” This provision was declared uncon stitutional in a consent decree filed on May 30, 1978, Fernandez v. Shapp, 74-2959 (E.D.Pa.1978), because it improperly discriminated against illegitimate children. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The question then becomes what éffect the declaration of unconstitutionality had on the then existing intestate law. In Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981), vacated and remanded, 460 U.S. 1077, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983), the court of appeals faced a similar question with respect to unconstitutional provisions of the West Virginia and Mississippi intestate laws as they affected illegitimate children. The court concluded that § 216(h)(2)(A) was intended to allow anyone to receive Social Security benefits who was determined by the st&te legislatures to be eligible for intestate inheritance. In the absence of affirmative legislative intent, however, the court would not permit such result by excising the clause which prevented illegitimates from inheriting. The court reasoned that deleting the prohibitory language would result in converting a state statute into one actually providing the opposite of what its language required. The United States Supreme Court vacated the judgment and remanded the case for reconsideration. 460 U.S. 1077, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983). On remand, Jones v. Heckler, 712 F.2d 924 (4th Cir.1983), the court referred to state law and found that the West Virginia Supreme Court applied the rule of “neutral extension.” This doctrine expanded the terms of the statute by granting equal rights to illegitimates and thus avoided the denial of equal protection. Following that rationale, the court of appeals adopted a similar construction for Social Security purposes. See also Jones v. Heckler, 754 F.2d 519 (4th Cir.1985). Applying that same approach here, does not fashion a common law of intestate succession in Pennsylvania. All that is needed is removal of the unconstitutional clause from the 1972 state statute thus allowing the remainder to stand. In that form, the statute puts legitimate and illegitimate children" }, { "docid": "16537080", "title": "", "text": "intestacy inheritance statutes of Mississippi and West Virginia. Additionally, in my mind, the remand explicitly pointed us to the sources for resolution of the issues presently before us. These include the statute of Mississippi and the decision of the Supreme Court of Appeals of West Virginia in Adkins v. McEldowney, 280 S.E.2d 231 (W.Va.1981). With these directions the Jarndyce and Jarndyce litigation now before us may be “squeezed dry,” as Dickens put it, and the unfairly treated illegitimate children in suit will enjoy the benefits of Social Security provided ' for them by Congress. I The Mississippi statute in pertinent part, as amended in 1981, is set forth in the majority opinion of this Court and reads as follows: An illegitimate shall inherit from and through the illegitimate’s mother.... An illegitimate shall inherit from and through the illegitimate’s natural father ... if: (a) The Natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or (b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or (c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. Miss.Code § 91-1-15 (Cum.Supp.1982). With sincere deference to my brothers, I must disagree with the majority’s sua sponte determination to ask the Mississippi Supreme Court to interpret this statute, for I discern no lack of clarity in its directions. To me, this enactment violates the Equal Protection Clause of the Fourteenth Amendment. Trimble v. Gordon, 430 U.S. 762, 766-776, 97 S.Ct. 1459, 1463-1468, 52 L.Ed.2d 31 (1977). On its face," }, { "docid": "17726627", "title": "", "text": "Judge Skelly Wright said of that maxim that it is “increasingly considered unreliable [in statutory interpretation] for it stands on the faulty premise that all possible alternatives were necessarily considered and rejected by the legislative draftsmen.” National Petroleum Refiners Ass’n v. F.T.G., 482 F.2d 672, 676 (D.D.C.1973), cert. denied 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974). The legislative history of § 523 contains no reference to the possibility of changing established bankruptcy law by excluding child support that arises from a state court paternity suit. The effect of such a change would be to cause the statute to discriminate against illegitimate children. If support established by a paternity suit is excluded from § 523(a)(5), the statute would protect legitimate children from loss of their support in bankruptcy, but exclude illegitimate children from such protection (except in the somewhat exceptional circumstance of a divorce, separation, or property settlement agreement that provided for an illegitimate child). The Supreme Court in Trimble v. Gordon, discussing an Illinois law resulting in a similar effect upon illegitimate children, said: “[W]e conclude that the statutory discrimination against illegitimate children is unconstitutional.” Trimble v. Gordon, 430 U.S. 762, 766, 97 S.Ct. 1459, 1463, 52 L.Ed.2d 31 (1977). Thus the reading we give § 523(a)(5) preserves its constitutionality as well as being in accord with its legal and legislative history. Judge Norton reads the section as we do: he refers to a paternity suit as a legitimate source for a § 523(a)(5) exception from discharge: An obligation is excepted from discharge pursuant to § 523(a)(5) if it is founded on a legal duty of support. That duty, although required by federal law for dis-chargeability purposes, is imposed by state law. If there is no enforceable support duty, an obligation is dischargeable even if it is in the nature of support.... While the presence or absence of a duty to support may require extensive legal proceedings (such as, for example, a paternity action), it is usually determined quite readily. Norton, supra, § 27.57. A paternity suit was, in this case, the means of establishing the “enforceable" }, { "docid": "9328039", "title": "", "text": "had two illegitimate children in Italy. While in this country he executed an affidavit acknowledging these two children as his own. Under Italian law the effect of this acknowledgment was to legitimate the children. The court held that the father’s acknowledgment did not serve to legitimate the children because at the time of acknowledgment he was domiciled in Pennsylvania; hence Pennsylvania law, not Italian law, was to be used to determine the children’s status. Similarly, in the present case the alleged legitimating act — open and notorious recognition of the child pursuant to § 1 — 208(b)—took place in Pennsylvania not Maryland. In fact, the record indicates that the wage earner never saw the child after the child came to Maryland. (Johnson R. 61). Therefore, as in Scalabrelli’s Estate, Pennsylvania law would be employed by the courts of that State in determining the status of Robert Johnson. Plaintiff’s final argument is similar to that set forth by the Allen plaintiffs, i. e., that the incorporated Pennsylvania intestacy statute is unconstitutional. These arguments will be treated in the next section. Constitutional Arguments Plaintiffs in the Allen and Johnson cases argue that the Social Security Act’s incorporation of the former Maryland and current Pennsylvania intestacy statutes, as they relate to illegitimates, is violative of the Fifth Amendment guaran tees of due process and equal protection, in that the incorporated provisions are themselves unconstitutional. It would appear that the State statutes challenged here are indistinguishable from the Illinois provision which was held unconstitutional in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). However, before addressing the constitutional issues posed herein this court is bound by 28 U.S.C. § 2403(b) to give the States of Maryland and Pennsylvania an opportunity to present argument in support of the constitutionality of their challenged statutes. As a result, an order shall be certified to the Attorneys General of Maryland and Pennsylvania informing them that the constitutionality of the former Maryland and current Pennsylvania intestacy statutes have been drawn into question in these actions. The States of Maryland and Pennsylvania shall be given" }, { "docid": "10776366", "title": "", "text": "which required that the parents intermarry or that paternity be established by clear and convincing proof. (Tr. 17). However, at the time of the hearing on February 1, 1984, the 1983 revision of the law had been in effect since April 1983. The harsh common law rule on illegitimate children prevented their inheriting from either parent in intestacy. N.J.S.A. 3A:4-7, modified the common law by providing that illegitimate children could inherit by and through the mother. Such children could only inherit from an intestate father if the parents had subsequently married and the child was recognized. In 1977, N.J.S.A. 3A:4-7 was ruled unconstitutional following Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In the Matter of the Estate of Sharp, 151 N.J.Super. 579, 377 A.2d 730 (Ch.Div.1977). Like the Texas statute in Trimble, the New Jersey statute applicable in Sharp, N.J.S.A. 3A:4-7, was found unconstitutional because it failed to grant illegitimate children the same rights vis-a-vis their father as it granted vis-a-vis the mother, thereby violating the due process requirements of the Amendment. Sharp, 377 A.2d at 732. N.J.S.A. 3A:4-7 was repealed by P.L.1977, C. 412, § 90, eff. September 1, 1978, and replaced in the new Probate Code by N.J.S.A. 3A:2A-41, P.L. 1977, C. 412, § 44, eff. September 1, 1978. At the time of Alvina’s death in 1980, the New Jersey law on intestate succession was broader than N.J.S.A. 3A:4-7. N.J. S.A. 3A:2A-41 permitted succession if paternity had been adjudicated before the death of the father or was established by clear and convincing proof. • N.J.S.A. 3A:2A-41(b)(2) (1978). However, in 1983 the law on succession had been further expanded to include the “New Jersey Parentage Act.” In its present form, the law reads, in pertinent part: 3A:2A-41. Meaning of child and related terms If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, ... (b). In cases riot covered by subsection a, a person is the child of its natural parents regardless of their marital status. The parent and" }, { "docid": "5007654", "title": "", "text": "suspect classifications invoking strict judicial scrutiny of a particular regulation scheme, it is readily apparent that the expansion of strict scrutiny has been significantly circumscribed. Notwithstanding these relatively rigid guidelines, however, the present Supreme Court has arguably evolved a somewhat elastic range of scrutiny depending upon the interests sought to be protected or the classification system used to further the legislative end. Some members of the Supreme Court as well as some legal commentators contend that between the two extremes of equal protection scrutiny lies a middle tier or “rational basis with a bite” as Professor Gunther has referred to it. It is necessary to analyze this middle-tier scrutiny since plaintiffs in this case seemingly rely heavily upon cases where the Supreme Court has reviewed statutes, ordinances, and other regulations with a degree of scrutiny arguably inconsistent with the traditional deferential equal protection rational basis review. A close examination of the cases that have invoked an arguably higher standard of review in equal protection cases not involving previously identified fundamental interests or suspect classifications indicates that these cases divide primarily along two lines: (1) classification schemes which use illegitimacy as a basis for discriminating between one group and another; and (2) gender-based discriminations. In the illegitimacy field, the Court appears to have taken a wavering course in the review of classifications based on that status and while it has invalidated some illegitimacy classifications which would seem capable of surviving deferential standards of the old equal protection standard of review, it has rejected challenges in other cases. On the one hand, we have recent eases such as Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976), which have sustained Social Security Act provisions disadvantaging illegitimates, while on the other, we have cases such as Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), which have invalidated classifications based on illegitimacy. In Trimble, the Court observed that classifications based on illegitimacy must be “ ‘carefully attuned to alternative considerations.’ ” Id. at 772, 97 S.Ct. at 1466, quoting Lucas, supra, 427 U.S. at 513," }, { "docid": "18667500", "title": "", "text": "may inherit from his father only if the parents intermarry and the father recognizes the child to be his. Mo.Rev. Stat. § 474.070 (1978). In that situation, of course, the child is no longer illegitimate. What both the Government and plaintiff’s attorney neglected to point out is that this statute clearly is unconstitutional. In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Supreme Court held unconstitutional § 12 of the Illinois Probate Act, virtually identical to the statutes involved here, which allowed illegitimate children to inherit by intestate succession only from their mothers. That statute also provided that “a child who was illegitimate whose parents inter-marry and who is acknowledged by the father as the father’s child is legitimate.” The Court held that the total statutory disinheritance of illegitimate children whose fathers die intestate was not rationally related to the promotion of a legitimate state interest. The Court objected to the requirement of intermarriage as an absolute precondition to inheritance. Imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual-as well as unjust-way of deterring the parent. (Citations omitted.) The parents have the ability to conform their conduct to societal norms, but their illegitimate children can affect neither their parents’ conduct nor their own status. Id., at 769-70, 97 S.Ct., at 1464-65. Accordingly, I find that if the Missouri Supreme Court were faced with this issue today, it would find its Probate Act unconstitutional in light of Trimble v. Gordon. Consequently, I find Stacy L. White entitled to Social Security benefits as a child of the deceased wage earner, Michael Ellis. Accord, Ramon v. Califano, 493 F.Supp. 158 (W.D.Tex.1980). Therefore, it is ordered that the decision of the Secretary denying the claim of Stacy L. White is hereby reversed, and summary judgment is entered in plaintiff’s favor. . Accordingly, plaintiffs daughter could not qualify for benefits under 42 U.S.C. § 416(h)(3)(C)" }, { "docid": "22777959", "title": "", "text": "some other regularized procedure that would assure the authenticity of the acknowledgment. As we noted in Trimble, 430 U. S., at 772 n. 14, such a procedure would be sufficient to satisfy the State’s interests. See also n. 11, infra. Appellant claims that in addition to discriminating between illegitimate and legitimate children, §4^1.2, in conjunction with N. Y. Dom. Rel. Law §24 (McKinney 1977), impermissibly discriminates between classes of illegitimate children. Section 24 provides that a child conceived out of wedlock is nevertheless legitimate if, before or after his birth, his parents marry, even if the marriage is void, illegal, or judicially annulled. Appellant argues that by classifying as “legitimate” children born out of wedlock whose parents later marry, New York has, with respect to these children, substituted marriage for § 4r-1.2’s requirement of proof of paternity. Thus, these “illegitimate” children escape the rigors of the rule unlike their unfortunate counterparts whose parents never marry. Under § 24, one claiming to be the legitimate child of a deceased man would have to prove not only his paternity but also his maternity and the fact of the marriage of his parents. These additional evidentiary requirements make it reasonable to accept less exacting proof of paternity and to treat such children as legitimate for inheritance purposes. In addition to making intestate succession possible, of course, a father is always free to provide for his illegitimate child by will. See In re Flemm, 85 Misc. 2d 855, 864, 381 N. Y. S. 2d 573, 579 (Surr. Ct. 1975). The dissent of Mr. Justice Brennan would reduce the opinion in Trimble v. Gordon, supra, to a simplistic holding that the Constitution requires a State, in a case of this kind, to recognize as sufficient any “formal acknowledgment of paternity.” This reading of Trimble is based on a single phrase lifted from a footnote. 430 U. S., at 772 n. 14. It ignores both the broad rationale of the Court’s opinion and the context in whiehthe note and the phrase relied upon appear. The principle that the footnote elaborates is that the States are free" }, { "docid": "22777965", "title": "", "text": "explainable only because of the overtones of its appealing facts, and offering little precedent for constitutional analysis of State intestate succession laws. If Trimble is not a derelict, the corresponding statutes of other States will be of questionable validity until this Court passes on them, one by one, as being on the Trimble side of the line or the Labine-Lalli side. Mr. Justice Brennan, with whom Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Stevens join, dissenting. Trimble v. Gordon, 430 U. S. 762 (1977), declares that the state interest in the accurate and efficient determination of paternity can be adequately served by requiring the illegitimate child to offer into evidence a “formal acknowledgment of paternity.” Id., at' 772 n. 14. The New York statute is inconsistent with this command. Under the New York scheme, an illegitimate child may inherit intestate only if there has been a judicial finding of paternity during the lifetime of the father. The present case illustrates the injustice of the departure from Trimble worked by today’s decision sustaining the New York rule. All interested parties concede that Robert Lalli is the son of Mario Lalli. Mario Lalli supported Robert during his son’s youth. Mario Lalli formally acknowledged Robert Lalli as his son. See In re Lalli, 38 N. Y. 2d 77, 79, 340 N. E. 2d 721, 722 (1975). Yet, for want of a judicial order of filiation entered during Mario’s lifetime, Robert Lalli is denied his intestate share of his father’s estate. There is no reason to suppose that the injustice of the present case is aberrant. Indeed it is difficult to imagine an instance in which an illegitimate child, acknowledged and voluntarily supported by his father, would ever inherit intestate under the New York scheme. Social welfare agencies, busy as they are with errant fathers, are unlikely to bring paternity proceedings against fathers who support their children. Similarly, children who are acknowledged and supported by their fathers are unlikely to bring paternity proceedings against them. First, they are unlikely to see the need for such adversary proceedings. Second, even if aware of" }, { "docid": "23628396", "title": "", "text": "Mich.App. 313, 194 N.W.2d 736 (1971) (in applying Ohio law the Michigan court of appeals held that the denial of an illegitimate child’s cause of action for the wrongful death of his or her father, merely because of the illegitimacy, violated the fourteenth amendment). In light of Levy, supra, its progeny and Ohio case law, we conclude that Ohio courts would most likely hold that the Campbell children have a cause of action for the wrongful death of Armstead Land, assuming he is their biological father. Standing to assert such a right, however, may be restricted by state law to circumstances where paternity has been proved. See Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (Supreme Court upheld the constitutionality of a New York statute which allowed illegitimate children to inherit from their father only if a court of competent jurisdiction, during the father’s lifetime, had entered an order declaring the child’s paternity). As long as state law provides some means by which an illegitimate child can prove paternity and thus gain an inheritance and those means are not used as an impenetrable barrier that works to shield otherwise invidious discrimination, such a state regulation(s) would probably pass constitutional muster. See generally Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In Ohio paternity may be established a number of different ways. The father may designate the child as his heir-at-law. O.R.C. § 2105.15. He may acknowledge paternity with the probate court. O.R.C. § 2105.18. He may adopt or provide for the illegitimate child in his will, Moore v. Dague, 46 Ohio App.2d 75, 345 N.E.2d 449, 452 (1975). The Campbells have not attempted to prove paternity by any of these means. However, they advance in support of their factual claim of biological paternity an affidavit allegedly executed by the decedent while living, for the purpose of proving paternity. Alternatively in Ohio, parentage is presumed when the biological father and the child’s mother, after the child’s birth, married or attempted to marry each other by a marriage solemnized in apparent compliance" }, { "docid": "16592182", "title": "", "text": "instructive. There, the Superior Court of Pennsylvania determined that the intestate law in effect in 1953 at the death of the alleged father of the illegitimate plaintiff controlled — not the 1978 statute in effect at the time the suit, was filed. That holding recognizes the state’s interest in orderly and predictable distribution of decedents’ estates as well as the state’s concern for vesting of the rights of survivors on death. The Hoffman case demonstrates that Pennsylvania law fixes intestate rights at the time of the decedent’s demise. Because the Pennsylvania courts make their determinations based on the law existing at the time of death, the Secretary must do likewise. Despite our respect for our learned colleagues in the Cox and Owens cases, we decline to follow their holding. We therefore will analyze the claimant’s application for Social Security benefits in light of the Pennsylvania statute in effect in 1976. The Pennsylvania intestate law of 1972, 20 Pa.Cons.Stat.Ann. § 2107(a) (Purdon 1975), provided that “For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his mother but not of his father.” This provision was declared uncon stitutional in a consent decree filed on May 30, 1978, Fernandez v. Shapp, 74-2959 (E.D.Pa.1978), because it improperly discriminated against illegitimate children. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The question then becomes what éffect the declaration of unconstitutionality had on the then existing intestate law. In Jones v. Schweiker, 668 F.2d 755 (4th Cir.1981), vacated and remanded, 460 U.S. 1077, 103 S.Ct. 1763, 76 L.Ed.2d 339 (1983), the court of appeals faced a similar question with respect to unconstitutional provisions of the West Virginia and Mississippi intestate laws as they affected illegitimate children. The court concluded that § 216(h)(2)(A) was intended to allow anyone to receive Social Security benefits who was determined by the st&te legislatures to be eligible for intestate inheritance. In the absence of affirmative legislative intent, however, the court would not permit such result by excising the clause which prevented illegitimates from" }, { "docid": "22777940", "title": "", "text": "than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally.” Trimble, supra, at 770. The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded “at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.” Id., at 771. We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more “ 'carefully tuned to alternative considerations/ ” id., at 772, quoting Mathews v. Lucas, mpra, at 513, than was true of the broad disqualification in the Illinois law. Ill The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 269. By lifting the absolute bar to paternal inheritance, § 4-1.2 tended to achieve its desired effect. As in Trimble, however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause. A At the outset we observe that § 4-1.2 is different in important respects from the statutory provision overturned in Trimble. The Illinois statute required, in addition to the father’s acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated “the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity.” Trimble, 430 U. S., at 770-771. As illustrated by the facts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance. Under § 4 — 1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evi-dentiary one — that the paternity of the father be declared in a judicial proceeding sometime" }, { "docid": "10776365", "title": "", "text": "daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A), such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case may be, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph (1) (B), would have been a valid marriage. I need not consider § 416(h)(2)(B), for Alvi-na Derrick and Yinnie McBride did not participate in a marriage ceremony. I therefore turn my attention to § 416(h)(2)(A). It is uncontested that Alvina Derrick was domiciled in the state of New Jersey at the time of his death. Therefore, the controlling law is New Jersey intestacy law. There is a question in this case as to which year’s form of the New Jersey intestacy statute is applicable. The AU applied the 1978 version of the statute which required that the parents intermarry or that paternity be established by clear and convincing proof. (Tr. 17). However, at the time of the hearing on February 1, 1984, the 1983 revision of the law had been in effect since April 1983. The harsh common law rule on illegitimate children prevented their inheriting from either parent in intestacy. N.J.S.A. 3A:4-7, modified the common law by providing that illegitimate children could inherit by and through the mother. Such children could only inherit from an intestate father if the parents had subsequently married and the child was recognized. In 1977, N.J.S.A. 3A:4-7 was ruled unconstitutional following Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In the Matter of the Estate of Sharp, 151 N.J.Super. 579, 377 A.2d 730 (Ch.Div.1977). Like the Texas statute in Trimble, the New Jersey statute applicable in Sharp, N.J.S.A. 3A:4-7, was found unconstitutional because it failed to grant illegitimate children the same rights vis-a-vis their father as it granted vis-a-vis the mother, thereby violating the due process requirements" } ]

[ { "docid": "21982105", "title": "", "text": "that another student told Ms. Mottola about rumors “that something was happening” between Ms. Doe and Mr. Benavides “[l]ike around May ... [o]r April 2007.” (04/29/09 Doe Dep. Tr. at 22-23.) Ms. Doe did not identify any of the students and there is no evidence in the record as to the identities of the students and what they did or did not report to a teacher as of April or May 2007. In her subsequent deposition, Ms. Doe testified that Ms. Mottola knew of the relationship “probably a few days prior [to June 6, 2007]. A month prior.” (ECF No. 103-2, Transcript of Deposition of Jane Doe dated January 14, 2010 (“01/14/10 Doe Dep. Tr.”) at 26.) Ms. Doe also testified, however, that she “do[es] not know the exact date [Ms. Mottola was told about the relationship] but I know she was told.” (Id. at 28.) On the other hand, Ms. Mottola, on numerous occasions in her deposition, flatly denied having any knowledge, or even any suspicion, of a relationship between Ms. Doe and Mr. Benavides prior to her conversation with Student A on June 6, 2007. (Mottola Dep. Tr. at 42-44, 51, 60.) Ms. Doe’s deposition testimony is vague at best, describes multiple hearsay statements, and is “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. As the only evidence in the record suggesting actual knowledge by a NYC-DOE official of any sort of sexual harassment or inappropriate relationship prior to June 6, 2007, Ms. Doe’s testimony is insufficient to establish a genuine dispute of material fact on the issue of actual knowledge “such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. Moreover, even if Ms. Doe’s deposition testimony was unequivocal that Ms. Motto-la was told about the relationship prior to June 6, 2007, Ms. Doe has no personal knowledge regarding what, when, and under what circumstances an unidentified classmate told Ms. Mottola about the relationship. Rather, Ms. Doe only recounted rumors that she heard from other unidentified students. Accordingly, plaintiff has thus failed to present admissible" } ]

[ { "docid": "17826996", "title": "", "text": "you have one girl at a dinner....” (Doc. No. 29-3 at 13). Russell complained to Keytel more than ten times by phone, between three and five times in person, and more than once via email. Keytel admits Russell’s complaints about Krull were “fairly regular.” (Doc. No. 29-12 at 7). When Russell complained to him on one occasion, he states that he “didn’t take it as a real serious situation” because she “never looked very distraught or in tears or like she was in any way traumatized.” (Id. at 8). In February 2008, Krull received a promotion to the position of Field Sales Manager for the Southern Region, which included Russell’s territory of Texas. Krull thus became Russell’s direct supervisor, and he reported directly to Keytel. Within a week of interviewing for the position, Krull sent Russell an email at 7:11 p.m. on a Friday evening stating that she was “behind the curve” and that he had “no defense or explanation for [her] performance.” (Doc. No. 29-4 at 58). In the same email, Krull requested that Russell provide him with an improvement plan “by this weekend,” and that he was reporting her status to Keytel on Monday. (Id.). On February 27, 2008, Krull emailed Cashin and told him Russell was a “slacker.” The subject line of the email was “Michele Problem.” (Doc. No. 30 at 2). Two days later, on February 29, Krull emailed Keytel about a customer issue with Russell. Krull wrote, “Note the positioning [of] Michele below[.] She is trying to put one over on me — Blatant LIES.” (Doc. No. 29-6 at 2). At the end of the email, Krull wrote, “Michele is clearly not being honest with us and is digging herself into a deep deep hole. I am beginning the recruiting process for her territory.” (Id.). Russell disputes Krull’s allegations of her dishonesty. On April 11, 2008, Russell sent an email to Keytel detailing her concerns about Krull’s alleged retaliation and harassment. The email states, in part: I have been made to feel that Mr. Krull’s continual, merit[-]less accusations are a retaliatory smokescreen that is ultimately" }, { "docid": "17827019", "title": "", "text": "sex discrimination, but rather alleged retaliation for filing a charge of age, race, and sex discrimination. Id. Similarly here, the plaintiffs April 18, 2008 EEOC charge states: I reported sexual harassment to Gary Keytel.... Shortly thereafter, I was approached by Kenneth Krull ... and told, ‘what did you say about me to get me in trouble?’ At every meeting, Kenneth brings up this situation. In January 2008, in front of a group of people he told me that I was inappropriately aggressive and he found it offensive.... In February 2008, Gary Keytel appointed Kenneth my immediate supervisor who has berated me, finds fault with everything I do; creates a hostile work environment, intimidates me; misrepresents me to Gary; has called [me] a liar. On 4/15/08 Gary, Kenneth and I had a conference call which resulted in me being put on probation by Kenneth. I feel I have been retaliated against for protesting a protected activity, in violation of Title VII.... (Doc. No. 29-6 at 12). Like Jones, this factual statement references a hostile working environment and retaliation for complaining of sexual harassment, but it does not specifically allege sexual harassment. The final sentence of the fact statement sums up Russell’s EEOC charge, and it only alleges retaliation. This sole focus on retaliation is magnified by Russell’s having checked only the “retaliation” box on the EEOC charge, like the plaintiff in Jones. The Court holds that Russell has not exhausted her administrative remedies regarding her sexual harassment claim. Because Russell has not exhausted these remedies, the Court lacks subject matter jurisdiction over the claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The Court will thus dismiss Russell’s claim for sexual harassment in violation of Title VII. 3. Retaliation Russell alleges BSN retaliated against her on multiple occasions after she complained of sexual harassment and Krull’s hostility toward her based on her gender. BSN does not contest whether Russell exhausted her administrative remedies as to this claim. A plaintiff may pursue a claim for retaliation under the burden-shifting framework of" }, { "docid": "22205987", "title": "", "text": "before 5 p.m., he departed from Quantico for his parents’ home. Though he owned an open-bed pickup truck, Russell borrowed Flynt’s car, a blue four-door Mercury Tracer station wagon, for the drive to Pennsylvania. A neighbor, Rhonda McCumber, testified that she saw a small blue station wagon backed into a parking space near the door of the storage shed adjacent to the Russells’ quarters at approximately 5 p.m. that day. Sometime between 9:30 and 11:00 that night, Russell again called Sogren, and again asked whether she knew of Gibbs’ whereabouts. As she had previously, So-gren told Russell that “he should know where Shirley is.” Id. Russell told Sogren that he had not seen Gibbs since she left for the Marine Corps Exchange. He then said, “[Y]ou know, me and Shirley got really close this weekend,” to which Sogren replied, “[R]ight, I know better than that because I know that Shirley wasn’t going to get back with you.” Id. Russell then said, “[Y]ou know, [Shirley] is really at peace with herself.” Id. at 637-38. After this last comment, Sogren hung up. Flynt did not see Russell again until Monday morning, March 6. When Russell returned Flynt’s car to her that day, she noticed that it had been cleaned, waxed, and vacuumed, and had a deodorizer hanging from the rearview mirror. Flynt testified that although Russell had borrowed her car in the past, he had never cleaned the car before returning it. On that same morning, Russell asked Flynt’s father-in-law, Robert Flynt, Sr., how he could remove bloodstains from concrete. Mr. Flynt, formerly a civilian painter at the Quantico base, told Russell that he should try cleaning the concrete with muriatic acid. Gibbs did not show up for duty on that Monday, and she missed an appointment with Lance Kryzcwicki, a Navy chaplain who had promised to help Gibbs with her income taxes. Neither family nor friends have seen or heard from her since March 4, 1989. Gibbs’ credit card, savings, and checking accounts have all been inactive since her disappearance, and the property that she placed in storage has remained undisturbed." }, { "docid": "6616785", "title": "", "text": "and had no previous criminal record. A bank mistakenly handed Russell’s partner, the truck’s messenger, a money bag containing $80,-000; The men initially kept the money, but one week later admitted their misdeed. Russell returned all the money and cooperated fully in the investigation of the crime. Although the First Circuit upheld the district court’s decision not to depart downward it noted that Russell’s behavior was “arguably ‘aberrant.’ ” Id. at 20. In Carey, we agreed with this assessment, noting that Russell had committed a single, unplanned, spontaneous act, and had returned the money shortly after committing the offense. Carey, 895 F.2d at 325. In granting Andruska’s downward departure, the district court apparently based its decision largely upon the testimony of her husband, who said at the sentencing hearing that his wife “wasn’t herself” during the relevant period. Sentencing Tr. at 64. Anthony Andruska stated that “Ella had her own apartment and she had a job on a car lot and she was educated and knew what she was doing,” id. at 63, but that he didn’t “think she knew who she was. We were not getting along, and with the job she had, you know, being there on the car lot all the time, it just — She just wasn’t used to it. Kind of got the big head from making good money, too.” Id. at 64. After explicitly stating that it found his testimony credible, the district court continued, I find from what little I have seen on this subject that he is a fine man. He has indicated ... that your conduct over this five to six month period, whatever the length may have been, during your relationship with Mr. Taylor, was unusual, that you have never engaged in this type of conduct before and haven’t since, that he attributes it in part to perhaps getting a big head as a result of your earnings. But in any event, what he has described in his testimony, I think, can be summed up by saying that he is telling me that your behavior was abberant [sic] and it" }, { "docid": "20254128", "title": "", "text": "she was deposed by the Diocese’s attorney on April 7, 2009. There, for the first time, she stated that she had complained to Grizard during her annual performance evaluation on August 8, 2006, that Enyan-Boadu was “touching” her. She also testified that, at her October 30 meeting with Grizard, she “accuse[d] Father Peter that [sic] he’s touching me and kissing me.” Rojas relied on this testimony, as well as her own affidavit, in her papers opposing summary judgment, where she asserted that she had repeatedly complained about Father Peter and “especially recalled] telling the Diocese and Bernard [Grizard] that she was being sexual [sic] assaulted by Father Peter. She would tell them, ‘Father Peter was touching me’ and would constantly cry to them.” PL’s Mem. Opp. S.J. at 11, Rojas II, No. 07-cv-6250 (CJS), (W.D.N.Y. July 1, 2010), ECF # 60-4. While Rojas relied solely on her own testimony to support these assertions, the Diocese supported its motion for summary judgment with affidavits and contemporaneous e-mails and meeting notes strongly suggesting that it had no knowledge of the alleged harassment until after Rojas’s employment ended, when it was reported that Enyan-Boadu had been arrested. The District Court’s Opinion In a detailed, 52-page opinion granting defendants’ motions for summary judgment, the District Court catalogued the inconsistencies and contradictions described above (among others) and concluded that “this case goes far beyond simple issues of credibility. Rather, upon the entire record, Plaintiff has changed key aspects of her prior version of events, set forth in pleadings, trial testimony, and sworn discovery responses, in an attempt to defeat [the Diocese’s] summary judgment motion.” Rojas II, 783 F.Supp.2d at 406-07. Having demonstrated the inconsistencies and contradictions in Rojas’s account, the District Court concluded that there were no genuine issues of material fact that would allow a reasonable jury to find in Rojas’s favor on her Title VII and NYSHRL claims. Id. at 410-13. After dismissing Rojas’s federal claims, the District Court declined, pursuant to 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over her common law assault and battery claim against Enyan-Boadu. Id. at 413-14." }, { "docid": "11318694", "title": "", "text": "appendix and the substance of which is set out in her brief on appeal. We decline to repeat the details of her experience here in toto; suffice it to say that, if true, the behavior of all of the individuals involved, all senior personnel of the company, from the president down, was crude and reprehensible. While Russell was employed at Microdyne, she received praise from a number of officials within the company, and she was apparently highly successful in handling the EXOS product line. Mason and others at some point became unhappy with Losquardo’s performance as marketing director and decided to replace him. Mason asked Russell whether she would be able to assume the marketing director’s responsibilities, and she responded that she would. Nevertheless, she never received this promotion. According to Russell’s contemporaneous notes, at the end of July 1991, Mason called her into his office to show her a new sofa bed that had been installed. At the time, the bed was pulled out from the sofa. Mason put his arm around Russell and said, “Hey, want to get lucky, what do you say, you and me,” while winking and pointing to the bed. Russell left his office. After Russell’s return from a conference the next month, Mason called her into his office and told her that he was reorganizing the division and that the three individuals who reported to Russell were being taken from under her supervision. When asked why he was doing this, he said that he had his reasons, and, again according to Russell’s contemporaneous notes, [he] goes on to tell me an analogy about his wife who used to work in a chauvinistic environment but she changed jobs and is much happier now. He ended “I don’t know what I am trying to say, but this is the way it is.” Rather than take this broad hint, Russell persevered in her position. During the fall, having met certain quotas, Russell approached a company official to ask about a contractually-required bonus. Three times this official asked her, suggestively, ‘What will you give me?” She raised the" }, { "docid": "7387930", "title": "", "text": "of this bombing. In the Campuzano case expert Dr. Bruce Teffit, a twenty-year CIA veteran and founding member of the CIA’s counter-terrorism center, testified regarding the massive support Iran provides terrorist organizations. Trial Tr. Day 1, at 4:7-25:1 Dr. Teffit estimated that in the early-to-mid 1990’s, Iran provided around $30,000,000 a year to Hamas. Id. at 17:20-23. Dr. Patrick Clawson, another expert on Iranian support for terrorism, testified that Iran annually provided Ha-mas between $25,000,000-$50,000,000 of material and cash support in the 1990s. Id. at 77:16-23. Most of this funding and support passed to Ham as via defendants MOIS and its military wing the IRG. Id. at 78:3-13. Overall, MOIS spends between $50,000,000 and $100,000,000 a year supporting terrorist activities. Id. at 113, Ex. 61; Campuzano, 281 F.Supp.2d at 262 ¶10. Plaintiffs Estate of Yael Botvin Yael Botvin, a fourteen-year-old ninth grader, was on her way home from the Emunah School for the Arts in Jerusalem, Israel, when she was killed by the September 4, 1997 suicide bombing. Dep. of Jule Goldberg-Botvin, at 38:21-41:13, ECF No. 17-1 to 17-2. Yael had stopped by the mall to buy school supplies when the bombing occurred. Id. at 44:21-22; 45:20-25. Experts opined that Yael survived approximately four hours after the bombing, and died due to burns, puncture wounds, and other unspecified internal injuries caused by the explosion. Expert Opinions, Pis.’ Exs. 13-14, ECF No. 22-4. She was an American citizen at the time of her death. Birth Certificate, Pis.’ Ex. 2, ECF No. 22-1. Her estate is properly represented in this action by its administrator, Russell Ellis. See Short Certificate, Non-Domiciliary Letters of Administration, Commonwealth of Pennsylvania, County of Montgomery, May 25, 2004, ECF No. 18-1, at 2-3. Julie Goldberg-Botvin Julie Goldberg-Botvin, Yael’s mother, spent “about two hours” not knowing whether Yael was safe or whether Yael had been injured by the bombing. Dep. of Jule Goldberg-Botvin, at 43:23-44:5, ECF No. 17-2. She stated that “[i]t was horrible, but we didn’t know what to do with ourselves so we just stayed there.” Id. at 44:7-8. Julie and Russell were then driven by friends" }, { "docid": "7387931", "title": "", "text": "No. 17-1 to 17-2. Yael had stopped by the mall to buy school supplies when the bombing occurred. Id. at 44:21-22; 45:20-25. Experts opined that Yael survived approximately four hours after the bombing, and died due to burns, puncture wounds, and other unspecified internal injuries caused by the explosion. Expert Opinions, Pis.’ Exs. 13-14, ECF No. 22-4. She was an American citizen at the time of her death. Birth Certificate, Pis.’ Ex. 2, ECF No. 22-1. Her estate is properly represented in this action by its administrator, Russell Ellis. See Short Certificate, Non-Domiciliary Letters of Administration, Commonwealth of Pennsylvania, County of Montgomery, May 25, 2004, ECF No. 18-1, at 2-3. Julie Goldberg-Botvin Julie Goldberg-Botvin, Yael’s mother, spent “about two hours” not knowing whether Yael was safe or whether Yael had been injured by the bombing. Dep. of Jule Goldberg-Botvin, at 43:23-44:5, ECF No. 17-2. She stated that “[i]t was horrible, but we didn’t know what to do with ourselves so we just stayed there.” Id. at 44:7-8. Julie and Russell were then driven by friends to Bikur Cholim hospital where they were shown a picture of Yael’s face and asked to identify her. Id. at 48:2-6. The first week “was very difficult because we have people coming to the house from the early morning until night.” Id. at 51:17-52:3. Life without Yael was “very quiet ... we still miss her.” Id. at 57:10-14. Poignantly, Julie reflected that “[w]e might look okay on the outside, but on the inside we are not okay, even ten years later. For me it’s terrible to see Yael’s friends who are now 24, 25 years old, and married and some of them have babies. It is very difficult.” Id. at 60:14-17. Julie was a citizen of the United States at the time of Yael’s death and remains so today. Passport of Julie Goldberg-Botvin, Pls.’ Ex. 5, ECF No. 22-1. Tamar Miriam Dagan (Botvin) Tamar Botvin submitted an affidavit. See Aff. of Tamar Botvin Dagan, Ex. J, ECF No. 18-2. Tamar, an American citizen at the time of the bombing and today, was Yael’s older sister." }, { "docid": "13802454", "title": "", "text": "he was on Workmen’s Comp____And Ray assumed that I was the one that was giving him money, where my brother was getting money hisself [sic] that was going to pay him.” Tr. at 108. Based on the testimony of Mr. Dozier, Mr. Lucas and Ms. Young herself, the Court must conclude that plaintiff was a full participant in an illegal attempt to bribe a witness in this case in exchange for false testimony. b. James Davis Defendant further alleges that Ms. Young tried to influence the testimony of another witness, James Davis, a former friend and co-worker of plaintiff. With respect to this allegation as well, the Court must agree that plaintiff improperly tampered with a witness—and this time, more directly. Once again, the words of the participants are most telling. In his testimony at the evidentiary hearing, James Davis recounted a conversation in which Ms. Young called him on the telephone and asked him “to go and tell the Senate lawyers different things that were happening at the Senate.” Tr. at 36. Mr. Davis described specific allegations of sexual harassment that Ms. Young told him to report to the Senate lawyers, including detailed statements by various individuals at the SAA. See id. at 36-40. As Mr. Davis testified, plaintiff telephoned him and asked him to tell the lawyers that “Claudia ... had grabbed my [Mr. Davis’] peter,” that Vic ... came up behind me and humped me,”’ that Tim ... “humped Doris at her machine while she was working one day,” and that other sexual incidents occurred in the workplace. Tr. at 36-39. Because he “didn’t want a confrontation,” Mr. Davis agreed to tell the lawyers everything that plaintiff told him to say, despite having no personal knowledge that any of the incidents plaintiff described had ever occurred. See id. at 36, 38, 41-44. See also Def.’s Mot., Exhibit E, Affidavit of Jim Davis at ¶¶ 5-10. Ms. Young did not deny asking Mr. Davis to report these things to the Senate. Rather, in her motion for non-dismissal, Ms. Young states only that Mr. Davis “changed his story” while" }, { "docid": "22206021", "title": "", "text": "the call to his parents to determine whether the weather was appropriate for disposing of a body. . Lieutenant Colonel Hodges testified at trial that he had seen a reddish spot on the floor of the storage area adjacent to the Russells' quarters when he inspected the quarters on March 6, after learning that Gibbs was missing, and that, when he returned to the storage area a week later, it appeared that there was whitewash on the concrete. Russell himself admitted to an FBI agent that he had cleaned up a bloodstain on the floor with muriatic acid. Russell told a newspaper reporter that he had made a mistake when he cleaned up the blood. He subsequently claimed that he had made this comment to the reporter because he realized that a test of the blood might have exculpated him by showing that the blood was not Gibbs’. . Four days after Gibbs’ disappearance, Russell was interviewed by Special Agent Barry Colvert of the FBI. When, midway through the interview, Colvert asked Russell whether he thought Gibbs might have committed suicide, there was a noticeable change in Russell’s demeanor. Russell, who until that point had been unemotional and \"businesslike,\" J.A. at 1205, responded to Colvert’s question with a series of peculiar hypothetical questions. He asked Colvert what would happen if he had followed Gibbs to the Marine Corps Exchange, found her in the woods, and \"covered her up, like I have been covering her up for the last three years.” Id. at 1206. Russell then asked what would happen if Gibbs had not yet shot herself when he arrived, and he had tried to take the gun away from her, but “[t]he gun Went off.” Id. at 1207. Russell then posed a third question: \"[W]hat if Í came upon her and she turned and pointed the gun at me and I thought she was going to shoot me, and I grabbed her and we struggled and the gun went off in an unusual place ...?’’ Id. After Colvert told Russell that the three scenarios he had described would be considered" }, { "docid": "22205986", "title": "", "text": "quarters. At approximately 1:20 p.m., Gayl went to meet Gibbs. When Gayl discovered that Gibbs was not at her bachelor quarters, Gayl drove to the Russells’ married quarters. When she arrived, Russell told Gayl that Gibbs had walked to the Marine Corps Exchange to purchase paint. Gayl testified that she was surprised by this explanation, because Gibbs rarely missed an appointment. Gayl also testified that Russell was flushed and sweating profusely when she saw him. After Gayl left the Russells’ quarters, Chief Warrant Officer Kenneth Shilko invited Russell into his quarters, where the two men talked and drank coffee for more than an hour. Shilko testified that he was doing most of the talking during Russell’s visit, and that Russell seemed distracted. Shilko also testified that Russell was concentrating on a clock that hung on a wall in Shilko’s quarters. Following his visit with Shilko, Russell returned to Flynt’s residence and showered. By then, it was approximately 3 p.m. After showering, Russell called his parents in St. Clair, Pennsylvania, and asked about the weather. Shortly before 5 p.m., he departed from Quantico for his parents’ home. Though he owned an open-bed pickup truck, Russell borrowed Flynt’s car, a blue four-door Mercury Tracer station wagon, for the drive to Pennsylvania. A neighbor, Rhonda McCumber, testified that she saw a small blue station wagon backed into a parking space near the door of the storage shed adjacent to the Russells’ quarters at approximately 5 p.m. that day. Sometime between 9:30 and 11:00 that night, Russell again called Sogren, and again asked whether she knew of Gibbs’ whereabouts. As she had previously, So-gren told Russell that “he should know where Shirley is.” Id. Russell told Sogren that he had not seen Gibbs since she left for the Marine Corps Exchange. He then said, “[Y]ou know, me and Shirley got really close this weekend,” to which Sogren replied, “[R]ight, I know better than that because I know that Shirley wasn’t going to get back with you.” Id. Russell then said, “[Y]ou know, [Shirley] is really at peace with herself.” Id. at 637-38. After this" }, { "docid": "4816552", "title": "", "text": "Deputy Director Khabo contacted her and told her he would file a complaint on her behalf, which Khabo neither confirms nor denies. Id. at 105; see Khabo Dep. [121-18], For several of the following months, Burns was out on paid administrative leave per DPR’s request. Burns’ Dep., [121-3], at 105-06. She says she spoke with Director Albert to make arrangements for leave and he “ensured [her] that an investigation was going to take place.” Id. at 106:4-5, 120:7-10. Returning to DPR in the summer of 2002, she worked at the Randell and Watkins Recreation Center. Id. at 110:10-11. She had no further contact with Thompson; she suspected, however, that she remained under his supervision because she was still an employee within the Maintenance Department, of which Thompson was still the Director. Id. at 118:1-17. Thompson admitted that Director Albert told him about Burns’ allegations of sexual harassment. Thompson Lerner Transcript, [121-16] at 35:14-19. DPR Chief of Staff Neil Rodgers and DPR EEOC Counselor Terrance Reddick spoke with Burns regarding her allegations. Burns reported the harassment to Sylvia Gwathmey, the Union Steward of the AFGE Local 2741. Pls.’ Mot. Partial Summ. J., ECF No. 121-11, Ex. 9, at 15 [“Gwathmey Dep.”]. Additionally, Burns relayed her allegations to Project Arise employee Leslie Greene. Pls.’ Mot. Partial Summ. J., ECF No. 121-18, Ex. 16 [“Greene Dep.”]. Green testified that she told Burns to take her complaint to a different office because she was no longer a Project Arise employee. Id. DPR allegedly informed Burns that it found no merit to her complaint, however, she was neither aware of any investigation into her complaint, nor was she contacted again by anyone from DPR regarding her allegations. Burns’ Dep., [121-3], at 120-21. Burns concluded that DPR did not take her complaint seriously. Id. at 121:20-21. Burns’ final term that was set on December 3, 2003, expired on January 19, 2004 — over a year and half after the incident in Thompson’s office. Pls.’ Opp’n DMSJ, ECF No. 133-1, Ex. 31 [“Burns Personnel Documents”]. Despite DPR’s unsupported assertions to the contrary, Burns claims that she never" }, { "docid": "7429213", "title": "", "text": "charge, see Butts, 990 F.2d at 1402; and (3) “where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.” Id. Here, the 1992 EEOC charge alleges in broad fashion that “I have been subjected to incidents of sexual harassment as the only female employee in my area.” Defendants’ Ex. “E”. The charge goes on to say that “my work performance has been more closely scrutinized and criticized than that of male co-workers.” Id. This charge does not provide any specificity as to any other types or forms of discrimination. Plaintiff elaborated upon this charge in her February 5, 1993 letter to the DHR wherein she alleged that she found pornographic pictures and a condom in her locker in March 1990, Russell threw paper on the ground and required her to clean them up in January 1992, she fell in the broken chair in August 1990, and that she heard Russell tell George Harvey to fire her in March 1992. The 1994 EEOC charge alleges that Russell “is constantly watching [plaintiff],” that he “used a key to open the door to the bathroom [she] was using,” that Russell treats other male employees differently, that she was forced to “use the bathroom in the shop which is used by about 23 males [but was then] given [ ] a written list of bathrooms which [she is] allowed to use,” and “[she] ha[s] been served with two unjustified charges of alleged Misconduct [in retaliation for filing the 1992 EEOC charge].” Neither the DHR charges nor any supplementary information provided in connection therewith make allegations of dirty jokes, being kissed or grabbed by her supervisor, of having her chair pushed next to Russell, of being exposed to poison ivy, that she was given a picture of a man dressed only in his underwear, or that Quanta placed a “men only” sign on the shop door, exposed himself, made sexual innuendos, stuffed a rag in her mouth and engaged in other inappropriate behavior. Accordingly, the Court finds that much of the conduct alleged in this" }, { "docid": "5723210", "title": "", "text": "$1000 and $3000. Russell’s response was, “You mean I’m talking sending a $100,000 to a man with two little bitty personal accounts?” Id. at 144. Concerned because Higgins “had no money in his account to speak of,” id. at 186, Russell took steps to ensure that Higgins actually had a contract for the diesel fuel. Russell never asked to see the contract himself, nor did he arrange for an attorney or anyone else to review its authenticity for him. Instead, Russell decided to verify the contract’s existence by having Higgins take it to Friendly National, and having someone there describe it to Russell over the phone. Accordingly, on November 5, 1979, Higgins took the contract to Nona Parrott and asked her to take a telephone call from Russell. According to Parrott, she read the contract to Russell at his request, skipping parts of it whenever told to by Russell, and informing him whenever a word or phrase was blacked out or illegible. She testified that after reading the contract in this fashion for a short time, Russell interrupted her and stated “Never mind [reading the contract], just tell me the name of the company.” Rec., vol. X, at 136. According to her testimony, Parrott responded that she could not see the company name because Higgins had covered that part of the contract with a sheet of paper. In response to Russell’s inquiry about the general nature of the document, Parrott told him that the document had numerous changes and places marked out, that the signature was covered by the sheet of paper, and that she was unable to see the whole document. Russell’s testimony concerning the telephone exchange differs somewhat from Parrott’s version. Russell testified that Parrott did not read the contract to him, but rather was willing only to answer any specific questions that he might tender. Id. at 173, 200. Russell further asserted that Parrott said the document was signed, and he denied that Parrott told him about the numerous strike-outs on the paper. Finally, Russell claimed that Parrott told him the paper “looked like ... a contract" }, { "docid": "23324364", "title": "", "text": "and told her that she would be transferred to Adjustments on January 27. According to Walker, Russell replied, “that her attorney had advised her and that she was refusing the transfer ... and that she had also amended her charge against the bank to include retaliation.” Finally, on January 24, Walker, with Cain present, saw Russell for the third time and “again offered her the opportunity to transfer to the Adjustments Department and informed her that if she refused the transfer that we would have no alternative but to terminate her employment with the bank immediately.” She refused the transfer and her termination was then processed. This account is not substantially different from that of Russell, except that she disputed that she had said that she was refusing the transfer on advice of her lawyer. In her sworn charge as filed with the EEOC, however, Russell said that she was “refused permission to transfer after [she had previously requested a transfer to that division, i.e., Adjustments] refusing same.1 trial several years later, she testified she “refused to go into that [Adjustments] department because [she] had already volunteered to work in that department, and I was told that I did not have enough experience and there was no one to train me; and I refused it because I felt then that I didn’t have any job knowledge.” This testimony, that she had earlier volunteered to work in Adjustments but had been refused because of a lack of experience, is contradicted, however, by other testimony given by Bus-sell herself at trial. She testified at trial that when she had volunteered to go to Adjustments, her supervisor “acted as though he didn’t hear me,” not that her supervisor told her that she “did not have enough experience .. . [or] any job knowledge.” She, in turn, sought to' explain away the language in her EEOC charge that she had previously requested a transfer to that division some two months before her discharge in January, 1975 by repudiating the language in the charge, saying that she was “under pressure” when she gave the statement" }, { "docid": "20254127", "title": "", "text": "October 31, 2006, meeting with Grizard and Mary Bauer, the Diocese’s Director of Human Resources, she “started to explain to [Bauer] about the hostile environment and work conditions in [her] work place” but was interrupted; (3) On November 2, 2006, she “wrote by e-mail to the Department of Human Resources indicating that [she] wanted to discuss Sexual Misconduct.” None of the three pleadings contained an allegation that Rojas had complained specifically of sexual harassment by Enyan-Boadu. Subsequently, in a sworn re sponse to a defense interrogatory asking her to “[describe each occasion on which [she] complained to the defendants,” Rojas indicated that the only complaint she had made to the Diocese was on October 30, 2006, when she met with Grizard and told him that “ ‘Pastor Peter is making my life miserable’ and ‘you need to take action.’ ” Consistent with these statements, Rojas testified at Enyan-Boadu’s criminal trial that she had not made any specific complaints to the Diocese about Enyan-Boadu’s harassing behavior because she felt intimidated by Enyan-Boadu. Rojas’s story changed when she was deposed by the Diocese’s attorney on April 7, 2009. There, for the first time, she stated that she had complained to Grizard during her annual performance evaluation on August 8, 2006, that Enyan-Boadu was “touching” her. She also testified that, at her October 30 meeting with Grizard, she “accuse[d] Father Peter that [sic] he’s touching me and kissing me.” Rojas relied on this testimony, as well as her own affidavit, in her papers opposing summary judgment, where she asserted that she had repeatedly complained about Father Peter and “especially recalled] telling the Diocese and Bernard [Grizard] that she was being sexual [sic] assaulted by Father Peter. She would tell them, ‘Father Peter was touching me’ and would constantly cry to them.” PL’s Mem. Opp. S.J. at 11, Rojas II, No. 07-cv-6250 (CJS), (W.D.N.Y. July 1, 2010), ECF # 60-4. While Rojas relied solely on her own testimony to support these assertions, the Diocese supported its motion for summary judgment with affidavits and contemporaneous e-mails and meeting notes strongly suggesting that it had no" }, { "docid": "23324367", "title": "", "text": "Russell’s own admissions that the reprimands, the counseling and the evaluations of Russell’s job performance were “unfair.” Equally without any real basis in the record is the statement that the reprimands, the probations and the evaluations only occurred after Russell had filed her complaint with the EEOC. When asked, “[w]hat happened, Ms. Russell, after you filed your charge with the EEOC?” Ms. Russell replied, “[w]ell, I started, I got a low progress report, and I was put on 60 days probation, no, that was before I filed. I was just being harassed.” (Emphasis added) She offered no explanation of how she was harassed. But even though she had poor job performance Russell claims she should not have been placed on probation or given the option of transferring or being fired because other employees, with equally bad absenteeism and tardiness records had not been so treated. This explanation was accepted without question by the District Court. Ms. Russell identified three employees who, she said, had similar or worse absentee records than she and who were treated more leniently. These three were Joyce Norwood, Joyce Gibbs and Donna Stokes; of the three, Norwood was black and Gibbs and Stokes were white. Norwood and Stokes were counseled about their absenteeism about the same time as Russell and both, according to the defendant’s undisputed testimony, responded by improving their attendance record. Norwood had had, according to her head supervisor, only two absences after counseling and had since been promoted twice. Since Norwood is black as is Russell, the difference in treatment between the two could not be racially motivated, and would appear to have been based on Norwood’s response to her counseling. Stokes, like Norwood, was retained after she corrected, following counseling, her attendance. But Gibbs, a white, who did not respond, was terminated. Russell contends, however, that Gibbs’ absenteeism had been more protracted than hers. The defendant, also, identified two other employees in the same department as Russell, both of whom were white and both of whom were fired at about the same time as Russell for excessive absenteeism without any offer of" }, { "docid": "22206022", "title": "", "text": "thought Gibbs might have committed suicide, there was a noticeable change in Russell’s demeanor. Russell, who until that point had been unemotional and \"businesslike,\" J.A. at 1205, responded to Colvert’s question with a series of peculiar hypothetical questions. He asked Colvert what would happen if he had followed Gibbs to the Marine Corps Exchange, found her in the woods, and \"covered her up, like I have been covering her up for the last three years.” Id. at 1206. Russell then asked what would happen if Gibbs had not yet shot herself when he arrived, and he had tried to take the gun away from her, but “[t]he gun Went off.” Id. at 1207. Russell then posed a third question: \"[W]hat if Í came upon her and she turned and pointed the gun at me and I thought she was going to shoot me, and I grabbed her and we struggled and the gun went off in an unusual place ...?’’ Id. After Colvert told Russell that the three scenarios he had described would be considered suicide, accidental death, and self-defense, respectively, Russell said that he wanted to stop the interview, but also wanted to “think about that suicide thing for a little bit.” Id. When Colvert told Russell that he had nothing to worry about if what Russell had just told him was true, Russell stated that he had \"just made ... up” that \"stuff about suicide,” because he “wanted to see how far a guy could go in this State.\" Id. at 1208. Russell then left the room. .Among the twenty-six steps were the following: (6) \"what to do with the body”; (8) “alibi, excuse from work”; (15) “how do I kill her”; and (25) \"check in library on ways to murder— electrocution?” J.A. at 164. Russell’s mother testified that Russell was a writer, and that the computer file contained ideas for a novel he was working on. . Russell’s brother testified that this statement was made in the context of \"a joking situation.\" J.A. at 460. . This testimony was based upon test firings in Russell’s former quarters" }, { "docid": "9046869", "title": "", "text": "\"in his face and his behavior.\" Id. ¶ 8. The \"change in Tom\" caused Kimi Lawrence to feel \"helpless and depressed. [They] had always been very close-[she] was eighteen when Tom was born, and in a sense [they] had grown up together,\" and so it \"was difficult for [her] to see the change in\" him. Id. ¶¶ 9-10. The \"experience [her] son went through deeply and adversely affected all of ... his immediate family, and some of the after-effects of that terrible day still linger with all of\" them. Id. ¶ 11. Bruce Russell Lawrence is Thomas's father, and learned of the Khobar Towers attack in a phone call from Kimi Lawrence. Pls.' Damages Mot., Attach 2, Decl. of Bruce Russell Lawrence (\"Bruce Lawrence Decl.\") (June 28, 2018) ¶¶ 2, 4, ECF No. 25-2 at 110. \"Although [he] was about 750 miles away, [he] drove back home all the way that day and night because [he] wanted to be back with [his] wife and daughter as soon as possible,\" and \"realized that [he] had to be strong for [his] wife and daughter.\" Id. ¶¶ 4-5. Bruce Lawrence remained \"worried and fearful\" while his son \"stay[ed] in the danger zone for several more months,\" and was then \"dismayed when [he] saw the changes in Tom when he returned.\" Id. ¶¶ 6-7. Lawrence \"was more withdrawn and cautious,\" and Bruce Lawrence saw \"him hit the dirt and dive under a trailer when there [were] fireworks nearby.\" Id. ¶ 7. His \"whole family was affected and had to adjust to the new reality of how Tom had changed,\" and Bruce Lawrence \"was always angry about what happened and about how ineffective the investigation and pursuit of the terrorists seemed to be.\" Id. Andrea Jo Grimson is Lawrence's sister, and was eleven years old at the time of the Khobar Towers attack. Pls.' Damages Mot., Attach 2, Decl. of Andrea Jo Grimson (\"Grimson Decl.\") (June 27, 2018) ¶¶ 2-3, ECF No. 25-2 at 112. When her parents told her about the bombing, she \"was shocked,\" and, after seeing coverage of the attack on TV," }, { "docid": "18968917", "title": "", "text": "eviction occurred on September 16. Moreover, even if Ms. Jean-Francois sought treatment four days after the assault, this does not undermine the credibility of her account of the attack, which was clear and convincing. In her direct testimony, by affidavit, she testified as follows about the eviction: “I saw Eli Davidovics and four men moving the items located in the first floor space of [the Building] onto a large moving truck.... As I was trying to speak to Eli Davidovics, he pushed me and three of the movers struck me with chairs.” (Jean-Francois Aff. 3, ECF No. 126.) On cross-examination, she stated as follows: I was coming back from the court with papers that [Mr. Davidovics] had to open the doors [to the Building] so I could get my stuff. So [Mr. Davidovics] pushed me and asked me did I pay any mortgage, and [I didn’t] even come back, because I had to go to the hospital after-wards. (Trial Tr. 61:25-62:3, ECF No. 130.) She further testified, “I got hit with the chairs. Not [Mr. Davidovics], he pushed me; it was the people that were moving for him, and he let them beat me with the ... chairs.” (Trial Tr. 90:2-4, ECF No. 130.) The Court finds that in her direct testimony by affidavit, and on cross-examination, Ms. Jean-Francois provided a credible account of the altercation and of the physical assault by Church Avenue’s agents. Church Avenue also argues that Ms. Jean-Francois’s direct affidavit testimony is contradicted by the original motion, in which she stated that she was bitten, not beaten. However, this discrepancy can be explained by the fact that Ms. Jean-Francois is not a fluent English speaker.; she testified at trial through a Haitian Creole interpreter. It is entirely plausible that (as was explained at trial) when the Debt- or’s original attorney prepared the Sanctions Motion in 2013, he misunderstood her: that when she told him she had been “beaten,” he thought she said “bitten.” (See Trial Tr. 88:21-89:11, ECF No. 130.) For the same reason, the fact that the police report notes that Ms. Jean-Francois was hit" } ]

[ { "docid": "16784103", "title": "", "text": "1292(a)(1). To be sure, it was an order having the “practical effect” of a preliminary injunction, but such an order is not appealable unless the appealing party demonstrates that it faces “serious, perhaps irreparable consequences,” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). See I.A.M. National Pension Fund Benefit Plan v. Cooper Industries, Inc., 789 F.2d 21 (D.C.Cir.), cert. denied, — U.S. —, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986). Here, KSC concedes that it faces no such consequences. Nor did it seek or obtain certification of the payment order in accordance with 28 U.S.C. § 1292(b). Accordingly, KSC’s attempted appeal must be dismissed for lack of jurisdiction. 2. RTF’s Appeal While urging us to dismiss KSC’s appeal of the payment order, PTF asks us to hear its appeal of the escrow order. PTF distinguishes the two situations by claiming that it is suffering irreparable injury from the escrow order and thus is entitled to an appeal under Carson. PTF’s first argument in support of this position is that the rate of interest it is receiving on the escrow account is less than that which it could earn in its own investment portfolio. This harm may be redressed by the final judgment in the event that PTF prevails, and is insufficient to justify an interlocutory appeal. At oral argument, PTF for the first time advanced another hardship purportedly imposed by the escrow order: contending that it faced many suits like this one, it urged that if escrow orders were entered in all of them, its ability to pay pensions to its members would be impaired. We reject this contention as entirely speculative. Each party retains its right to seek modification of the district court’s orders on the basis of changed circumstances. In the event that such a motion were made, and denied, and grave injury inflicted by the denial, then we would review the matter in accordance with the principles already stated. For" } ]

[ { "docid": "2202107", "title": "", "text": "the “express determination” nor the “express direction”—no surprise, for the judge was addressing a motion under § 1292(b). It is, then, the collateral order doctrine or nothing. Awards of attorneys’ fees are ap-pealable independently of the merits. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Although interim awards are not final in the traditional sense, because the court may award more later (or direct the plaintiffs to repay the money if they ultimately fail to establish an entitlement to relief), we have held that they are appealable under the collateral order doctrine when the defendant may have difficulty getting the money back. Richardson v. Penfold, 900 F.2d 116 (7th Cir.1990); Palmer v. Chicago, 806 F.2d 1316 (7th Cir.1986). Accord, Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir.1989); Webster v. Sowders, 846 F.2d 1032 (6th Cir.1988). Contra, Rosenfeld v. United States, 859 F.2d 717 (9th Cir.1988). Because awards of fees are separate judgments for purposes of § 1291, the Cohen “collateral order” doctrine is not a neat fit. An award is collateral to the merits, but the final award is independently appealable and an interim award is not “collateral” to that decision. Forgay, which allowed an appeal when the judge directed an immediate transfer of property, may offer the better analogy. Awards of interim fees compel payment in mid-litigation, with chancy prospects of recoupment at the end, the sort of situation Forgay contemplated. See O D C Communications Corp. v. Wenruth Investments, 826 F.2d 509, 513-16 (7th Cir.1987) (discussing the “irreparable harm” component of appellate jurisdiction under Forgay). Sailing is not smooth for these parties, however. Plaintiffs were not required to pay anything; they do not face a risk of irreparable injury in paying now and being unable to recover later. If at the end of the case the court determines that Delaware Valley allows a risk multiplier, counsel can be fully compensated, including interest to cover the time value of money. They" }, { "docid": "7041417", "title": "", "text": "or the possibility of set-off open to future determination. Furthermore, the Olson case appears to involve a liquidation and not a reorganization proceeding. Even if we were to apply the Eighth Circuit’s finality standards to the instant case, our decision would be the same. We fail to see that effective relief will be denied if the Bankruptcy Judge is permitted to take evidence and decide the legal question in the first instance. If the Banks remain dissatisfied with the Bankruptcy Court’s decision they may again appeal. Furthermore, they have not shown how money expended in the temporary payment of benefits to individual claimants prior to such an appeal could not be subsequently recovered from the group of Retirees under the plan of reorganization. The Banks next argue that Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), establishes the rule that an order is final if it directs the immediate delivery of physical property and subjects the losing party to irreparable injury due to the delay of appellate review. Forgay-Conrad held that an order setting aside certain deeds as fraudulent and directing the delivery of land, money and slaves to the assignee in bankruptcy for the benefit of creditors was a final order. In Forgay-Conrad, the lower court decided the merits of the assign-ee’s claim to the disputed property. All that remained was a master’s report for an accounting of rents and profits. The issues faced by Judge Lifland are entirely different. There is no question that the Retirees have some claim against LTV. After negotiation by the parties, the real task for the Bankruptcy Court will be to determine what type of claim the Retirees have, and how much it is worth. Though the Order provides retired workers with interim life and health insurance coverage, the nature and value of their claims has not yet been addressed let alone determined. Moreover, the Banks have not shown how their interests will be irreparably harmed if their appeal is not heard at this time. Approximately 79 percent of the Banks’ claims are secured. Though the Banks raise the" }, { "docid": "14873066", "title": "", "text": "generator. The characterization makes no difference because both injunctions and orders modifying injunctions are appealable without regard to finality. 28 U.S.C. § 1292(a)(1). It could hardly be otherwise. The Rockford Board of Education could not be expected, when it first appealed from the Comprehensive Remedial Order, to challenge budget orders not yet entered. And though in form orders to pay, the budget orders, as means of follow-on relief in an equitable proceeding, are in fact injunctive orders-what in Wisconsin Hospital Ass'n v. Reivitz, 820 F.2d 863, 868 (7th Cir.1987), we called \"equitable supplement[s]\" to an equitable decree. And anyway payment orders can be appealed without regard to finality when the appellant has no prospect of recovering the money should the order later be found to have been in error. See, e.g., Cleveland Hair Clinic, Inc. v. Puig, 104 F.3d 123, 126 (7th Cir.1997); Trustees of Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc., 935 F.2d 114, 116 (7th Cir.1991); Palmer v. City of Chicago, 806 F.2d 1316, 1319-20 (7th Cir.1986); I.A.M. National Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21 (D.C.Cir.1986). There is no way the plaintiffs can be made to repay millions of dollars to the taxpayers of Rockford should it turn out several years from now when this litigation is finally wound up that the budget orders are overgenerous. So the board can challenge the 1998 and 1999 budget orders, and although fiscal year 1998 has ended, the challenge to the 1998 order is not moot. If the board \"overpaid,\" it may be able to recoup out of the unexpended funds from that budget; indeed, one of the challenges to the 1999 budget order is that the amount ordered is excessive in light of the surplus in the 1998 budget. So there is no jurisdictional bar to the board's appeals. But none of the board's challenges to the magistrate judge's budget rulings has merit. The board exaggerates the practical scope of judicial review of such rulings. Public school desegregation litigation, like other institutional reform litigation, is remote" }, { "docid": "21413960", "title": "", "text": "Judge Patel clearly contemplates revising Rosenfeld's fee award at the close of the litigation. Furthermore, subsequent Seventh Circuit cases have emphasized the narrowness of Palmer’s holding. See Lac Courte, 829 F.2d at 602; see also Sandwiches, Inc. v. Wendy’s Int’l., Inc., 822 F.2d 707, 711 (7th Cir.1987). Following their lead, we hold that for an interim fee award to come under the collateral order exception, the government bears the burden of showing that ultimately it could not obtain repayment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 829 F.2d at 602. The government has not made such a showing. III. Appealability under the Forgay-Conrad Hardship Exception The government also argues that this case falls under the “hardship” rule of Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848), which permits immediate appeal if the order “requires the immediate turnover of property and subjects the party to irreparable harm if the party is forced to wait until the final outcome of the litigation.” Matter of Hawaii Corp., 796 F.2d 1139, 1143 (9th Cir.1986). The order to pay $33,758 in fees within 60 days satisfies the “immediate turn-over of property” requirement. But for the reasons given above, we do not find that payment of this modest award will irreparably harm the United States. IV. Appealability as an Injunction under 28 U.S.C. § 1292(a)(1) The government alternatively contends that the interim fee award is appeal-able as an injunction under 28 U.S.C. § 1292(a)(1). This argument is unavailing. According to the government, the order to pay the fees within 60 days had the practical effect of granting an injunction, in that it required the performance of some act — payment of the award within a limited period of time. This fails, however, to rise to the status of an appealable injunction for reasons lucidly set forth by the Supreme Court in Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981): For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order" }, { "docid": "2202105", "title": "", "text": "order for interlocutory appeal when it “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”. Although there may well be “substantial ground for difference of opinion” about the status of risk multipliers after Delaware Valley, it is hard to see how resolving the dispute one way or the other could “materially advance the ultimate termination of the litigation.” Although the district court believed it “manifestly fair that the basic parameters of fee entitlement be resolved early in this case rather than at the end”, a sentiment the parties share, § 1292(b) does not give district judges power to authorize interlocutory appeals generally. The question must be one the resolution of which “may materially advance the ultimate termination of the litigation.” Disputes about the quantum of attorneys’ fees do not satisfy that standard. We therefore deny the petition for leave to appeal under § 1292(b). According to the parties, § 1291 furnishes all necessary authority: first because Fed.R.Civ.P. 54(b) governs the order of September 25, and second because the award is a “collateral order” appealable on the theory of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its intellectual forbear Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848). The first of these founders because Rule 54(b) allows the entry of judgment only with respect to the final disposition of a claim for relief. Attorneys’ fees are not a separate claim for relief, Mulay Plastics, Inc. v. Grand Trunk Western R.R., 742 F.2d 369, 371 (7th Cir.1984), and as their name implies “interim” fees are not the last word on the subject. What is more, Rule 54(b) comes into play “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Auriemma v. Chicago, 906 F.2d 312 (7th Cir.1990). This record contains neither" }, { "docid": "12842306", "title": "", "text": "court has upheld the statute in general. Peick v. Pension Ben. Guar. Corp., 724 F.2d 1247, 1276 (7th Cir.1983). In the case before us, McNicholas promptly resorted to the arbitration remedy, and the ultimate decision on the merits will be produced through that process. Thus we have not been concerned with the rule requiring exhaustion or its exceptions. 29 U.S.C. § 1401(d) imposes a duty to make the scheduled payments in the interim. The Trustees sought the aid of the court to enforce that duty, and they seem to con tend that the court has no discretion as to enforcement. Although the order appealed from specifies that McNicholas must make all 56 payments, it also refers to the payments as \"interim installments,\" and must, we think, be subject to the arbitrator's ultimate decision as to the liability for and amount of the payments. If the arbitrator determines that there is no liability, or liability for a smaller amount, the order appealed from would have to be modified. If the arbitrator sustains the Trustees' determination of liability, a final order compelling the remaining payments (no longer \"interim\") will be appropriate. Because the court's June 6 order is subject to these contingencies, we consider it interlocutory and not final. We have jurisdiction of an appeal from an interlocutory order if it grants or refuses an injunction. 28 U.s.c. § 1292(a)(1). On its face the order appears to grant an injunction compelling payments on and after July 1, 1985, and refuses an injunction as to payments scheduled before that date. This court has noted the question whether an order compelling payment of interim liability is an injunction appeal-able under §~ 1292(a)(1). Robbins, 800 F.2d at 642, n. 2. It had been held that an order compelling a past due payment \"is appealable only if it `might have a \"serious, perhaps irreparable, consequence,\" and [if] the order can be \"effectually challenged\" only by immediate appeal.'\" I.A.M. Nat. Pension Fund v. Cooper Industries, Inc., 789 F.2d 21, 24 (D.C.Cir.1986). See also Korea Shipping Corporation v. New York Shipping Association, 811 F.2d 124, 126 (2nd Cir.1987)." }, { "docid": "23552632", "title": "", "text": "Appeals has addressed the unreviewability prong of the collateral order doctrine in the context of interim fee awards in a series of cases beginning with Palmer, in which the Court held that an interim fee award was appeal-able when fees were to be paid not to attorneys but to a “revolving fund” for prisoner-plaintiffs. 806 F.2d at 1319-20; see also, e.g., People Who Care v. Rockford Bd. of Educ., 171 F.3d 1083, 1086 (7th Cir.1999); Constr. Indus. Ret. Fund v. Kasper Trucking, Inc., 10 F.3d 465, 468 (7th Cir.1993); People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134-35 (7th Cir.1991); Richardson v. Penfold, 900 F.2d 116, 117-18 (7th Cir.1990). In a subsequent case, the Seventh Circuit indicated that although interim awards “are not final in the traditional sense ... [,] they are appealable under the collateral order doctrine when the defendant may have difficulty getting the money back.” People Who Care, 921 F.2d at 134. In this respect, the crucial consideration in determining that an order is immediately ap-pealable is whether “postponing appellate review till the end of the case would cause substantial irreparable harm to the party against whom the order was directed.” Palmer, 806 F.2d at 1319. My colleagues emphasize that the fee distributions at issue in this case have been made to counsel instead of to the parties. Cf. id. at 1319 (explaining that if the “fees would have been disbursed to the lawyers rather than retained by the prisoners and defendants, the problem would be less serious.... [W]e assume that the district court has an inherent power to order attorneys to whom fees were paid over by their clients pursuant to court order to repay the fees should the order be reversed.”). Although that consideration is relevant in the short-term, in the long-run this fact becomes a less compelling basis for finding that the unreviewability prong is not met. Whether the funds are distributed to an attorney or to a private litigant, it is difficult to maintain a high degree of confidence that either will remain available to be returned for re-distribution if" }, { "docid": "20397507", "title": "", "text": "award does not even dispositively determine fees due up to this stage of the litigation”). In fact, the district court “clearly contemplates revising [the] fee award” at a later time. Rosenfeld, 859 F.2d at 722. The district court would hardly have encouraged the parties to settle if the order finally had resolved counsel’s claim for attorneys’ fees for the year ended June 30, 2002. Cf. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945) (a final decision “leaves nothing for the court to do but execute the judgment”). In a more practical and discriminating vein, the Government also argues a post-judgment order to pay attorneys’ fees “should be immediately appealable where counsel is unlikely to be able to repay an overpayment.” The suggestion is that “irreparable harm to the government fisc ... bolsters the finality of orders like the one[ ] at issue here.” The courts of appeal have considered “irreparable harm” relevant in determining whether jurisdiction is available pursuant to the collateral order doctrine — which the Government does not invoke — but not pursuant to § 1291 itself. See Trout, 891 F.2d at 335; Rosenfeld, 859 F.2d at 721-22; Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986). Although the Government does not cite the case, its irreparable harm argument finds some support in Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848), which held an interlocutory appeal will lie from an order that “directs the property in dispute to be delivered to the complainant” and “subject[s the appellant] to irreparable injury.” We have questioned, however, whether “Forgay has continuing vitality apart from the collateral order doctrine.” Petties v. District of Columbia, 227 F.3d 469, 472 (D.C.Cir.2000) (“The Supreme Court has recognized but a single variation on the theme of finality, namely the collateral order doctrine”). If Forgay indeed has been overtaken by the collateral order doctrine, then the Government’s present argument is surely foreclosed. Be that as it may, the Government has failed to establish it is likely to suffer irreparable harm as a" }, { "docid": "23552599", "title": "", "text": "review postponed will, in effect, be review denied. Id. For purposes of the collateral order doctrine, unreviewability means that failure to review immediately may well cause significant harm. Id. It is well established that an award of interim fees may be effectively reviewed after final judgment is entered. See Shipes, 883 F.2d at 344; Yakowicz, 683 F.2d at 784-85; Hastings, 676 F.2d at 896; Ruiz, 609 F.2d at 119. The one possible exception to this conclusion, as suggested in Palmer v. City of Chicago, 806 F.2d 1316, 1319-20 (7th Cir.1986), is when the mere payment of fees would make them unrecoverable. That is, to satisfy the “un-reviewability” prong, there must be a showing that disbursement of the fees might very well make them unrecoverable at the end of the litigation should they turn out to have been awarded in error. Appellants have made no such showing here. Appellants cite to Palmer to support their argument that the interim fee award is collaterally appealable under Cohen because of the irreparable harm that may be inflicted by an order to pay interim fees. 806 F.2d at 1318 (collateral orders appeal-able “only when they threaten irreparable harm”). In Palmer, a district court ordered a city to pay immediately interim fees that might not have been recoverable if the award was later held invalid. The Seventh Circuit held that the order threatened sufficient harm to justify appellate review. Palmer, however, does not support Appellants’ position here. As explained by the Ninth Circuit in Rosenfeld, “the ‘irrevocable harm’ in Palmer would arise because interim fees were to be paid directly to a ‘revolving fund’ of prisoners and defendants whose class members might, by the close of the litigation, be insolvent, have disappeared, or no longer even be parties, making recovery upon appeal impossible.” 859 F.2d at 721 (citing Palmer, 806 F.2d at 1319). In contrast, the Palmer court stated, If (but for this appeal) the fees would have been disbursed to the lawyers rather than retained by the prisoners and defendants, the problem would be less serious ... [w]e assume that the district court has" }, { "docid": "2202108", "title": "", "text": "of fees are separate judgments for purposes of § 1291, the Cohen “collateral order” doctrine is not a neat fit. An award is collateral to the merits, but the final award is independently appealable and an interim award is not “collateral” to that decision. Forgay, which allowed an appeal when the judge directed an immediate transfer of property, may offer the better analogy. Awards of interim fees compel payment in mid-litigation, with chancy prospects of recoupment at the end, the sort of situation Forgay contemplated. See O D C Communications Corp. v. Wenruth Investments, 826 F.2d 509, 513-16 (7th Cir.1987) (discussing the “irreparable harm” component of appellate jurisdiction under Forgay). Sailing is not smooth for these parties, however. Plaintiffs were not required to pay anything; they do not face a risk of irreparable injury in paying now and being unable to recover later. If at the end of the case the court determines that Delaware Valley allows a risk multiplier, counsel can be fully compensated, including interest to cover the time value of money. They prefer money now to money later, but the difference is not an irreparable loss and does not allow immediate appeal. Yakowicz v. Pennsylvania, 683 F.2d 778, 783 (3d Cir.1982). Perhaps plaintiffs believe that their appeal can ridé pendent to the Board of Education’s. Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977), puts a hurdle in the way, but there is an even steeper one: timeliness. Judge Roszkowski made his interim award in February 1990 and refined it in April. Neither side filed a notice of appeal until early October, well after the 30 days allowed by Fed.R.App.P. 4(a)(1). October would be plenty of time if the appeals were taken from the order of September 25. Yet the judge did not make the collateral order in September; he certified an earlier order under § 1292(b). The dispositive question becomes whether the reentry of a collateral order (if that is the best way to characterize the action in September) restarts the time for appeal. It does not. Weir v." }, { "docid": "12842308", "title": "", "text": "We conclude, however, that we have jurisdiction of both appeals, McNi-cholas' as well as the Trustees'. As will be seen, we are of the opinion that a district court has a measure of discretion whether or not to use injunctive power to compel interim payments in these situations. Because the decision to compel payments beginning July 1, 1985, as well as to refuse to compel immediate payment of installments previously due, had a \"serious, perhaps irreparable, consequence,\" subject to effectual challenge only by immediate appeal, the order at least has consequences similar to an injunction and is appealable, by each party, respectively, as an interlocutory grant, i~ part, and refusal, in part, of an injunction. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 s.ct. 993, 996, 67 L.Ed.2d 59 (1981); Donovan v. Robbins, 752 F.2d 1170, 1174 (7th Cir.1985). We recognize the congressional purpose behind a collection procedure which has been characterized as \"pay now, dispute later.\" Robbins, 636 F.Supp. at 677 and 680, 800 F.2d at 642. We also recognize that compelled payment of money, recoverable with interest upon later determination of error, is not, in itself, irreparable harm. I.A.M. Nat. Pension Fund, 789 F.2d at 25, Terson Co., Inc. v. Pension Benefit Guar. Corp., 565 F.Supp. 203, 207 (N.D.Ill.1982). Here, McNicholas has asserted that compelling the payments would work a severe financial hardship and essentially preclude its resumption of operations. Its current annual income (non-operating) is less than $100,000, and if forced to liquidate its assets to make the $71,000 monthly payments, it would have no hope of resuming operations. Depending on the facts of the particular case, there can be unfairness and injury not likely intended by Congress in compelling interim payments while arbitration of the liability is pending. Congress has provided that interim payments are to be made. It has not expressly required courts to use injunctive powers to compel the payments in every case. We conclude that where the trustees bring an action to compel payment, pending arbitration, the court should consider the probability of the employer's success in defeating liability before the" }, { "docid": "20397508", "title": "", "text": "Government does not invoke — but not pursuant to § 1291 itself. See Trout, 891 F.2d at 335; Rosenfeld, 859 F.2d at 721-22; Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986). Although the Government does not cite the case, its irreparable harm argument finds some support in Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848), which held an interlocutory appeal will lie from an order that “directs the property in dispute to be delivered to the complainant” and “subject[s the appellant] to irreparable injury.” We have questioned, however, whether “Forgay has continuing vitality apart from the collateral order doctrine.” Petties v. District of Columbia, 227 F.3d 469, 472 (D.C.Cir.2000) (“The Supreme Court has recognized but a single variation on the theme of finality, namely the collateral order doctrine”). If Forgay indeed has been overtaken by the collateral order doctrine, then the Government’s present argument is surely foreclosed. Be that as it may, the Government has failed to establish it is likely to suffer irreparable harm as a result of the fee order in this case. See Rosenfeld, 859 F.2d at 721-22 (government bears burden of proving it could not obtain repayment). The Government can be deemed irreparably harmed ex ante only if the party and counsel awarded fees will “likely be unable to repay the fees if the award is later reduced or overturned.” National Ass’n of Criminal Defense Lawyers, Inc. v. U.S. Dep’t of Justice, 182 F.3d 981, 985 (D.C.Cir.1999); see Trout, 891 F.2d at 335 (requiring “real prospect of irreparable harm” to permit exercise of appellate jurisdiction pursuant to collateral order doctrine). The Government does not present any evidence from which we could infer that class counsel “will likely” be unable to repay any amount advanced in error. Before the district court the Government disputed class counsel’s entitlement to $413,500 of the $500,000 it was required to advance. When the Government filed this appeal, however, class counsel had pending petitions for almost $1.7 million in fees. Although some of the $1.2 million not here at issue may be disputed as" }, { "docid": "17858892", "title": "", "text": "House’s claims against Lockwood will not be lost if they are settled or adjudicated after a final judgment in the bankruptcy proceedings, and postponing a transfer of $7,650 from Lockwood to Hickory House should not irreparably harm either party. Finally, the appeal from the order presents no significant, unresolved questions of law. We, therefore, cannot review the district court order under the collateral order exception. This circuit also recognizes the doctrine of practical finality, or the ForgayConrad rule, which permits a court to review an interlocutory order that decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution. Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848); Atlantic Federal Sav. & Loan Ass’n, 890 F.2d at 376. The district court order delays rather than directs the payment of cash by Lockwood to Hickory House. Significantly, neither Lockwood nor the estate of Hickory House would be irreparably harmed by delaying settlement of Hickory House’s claims against Lockwood. Cf. In re Martin Bros. Toolmakers, Inc., 796 F.2d at 1437 (noting that the Forgay-Conrad rule allows review “whenever an order directs ‘immediate delivery of physical property and subjects the losing party to irreparable harm ’ if appellate review is delayed until conclusion of the case” (emphasis added)). Thus, the second exception to the rule of finality, the doctrine of practical finality, does not compel our immediate review of the district court order. In the third and “most extreme,” id., exception to the final judgment rule, we will review immediately “even an order of marginal finality ... if the question presented is fundamental to further conduct of the case.” Atlantic Fed. Sav. & Loan Ass’n, 890 F.2d at 376; see also Gillespie v. United States Steel Corp., 379 U.S. 148, 163-54, 85 S.Ct. 308, 311-12,13 L.Ed.2d 199 (1964). If the district court order were of marginal" }, { "docid": "21413957", "title": "", "text": "fee waiver determination.) The fee award, in contrast, although merited because Rosenfeld prevailed on the waiver issue, has a purpose intertwined with the ongoing litigation. One purpose of an interim award is to enable a meritorious suit to continue; its appeal, by freezing the progress of the ongoing litigation, thwarts that purpose. 3) Effectively unreviewable on appeal. This award is not “unreviewable on appeal” because, as mentioned above, the government can recoup erroneously awarded interim fees from Rosenfeld if it appeals from the district court’s final disposition of the litigation. As Judge Posner pointed out in Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986), “the second ‘prong’ is part of the third.” It can also, as in this case, overlap with the first. The government relies heavily on Palmer v. City of Chicago to support its argument that the interim fee award is collaterally appealable under Cohen because of the irreparable harm that may be inflicted by an order to pay interim fees. 806 F.2d at 1318 (collateral orders appeal-able “only when they threaten irreparable harm”). In Palmer, a district court ordered a city to pay immediately interim fees that might not have been recoverable if the award was later held invalid. The Seventh Circuit held that the order threatened sufficient harm to justify appellate review. Palmer, however, does not support the government’s position here. Judge Posner was careful to distinguish Palmer’s holding from a hypothetical fact situation identical to that presented by the instant ease. The “irrevocable harm” in Palmer would arise because interim fees were to be paid directly to a “revolving fund” of prisoners and defendants whose class members might, by the close of the litigation, be insolvent, have disappeared, or no longer even be parties, making recovery upon appeal impossible. 806 F.2d at 1319. In contrast, the Palmer court stated, If (but for this appeal) the fees would have been disbursed to the lawyers rather than retained by the prisoners and defendants, the problem would be less serious ... we assume that the district court has an inherent power to order attorneys to" }, { "docid": "13994043", "title": "", "text": "a money judgment. As they see things, it has an injunction for the benefit of the reinsurance pool as a whole. Until the arbitration is over and a final judgment entered, appellants contend, there is nothing to register. The arbitration has indeed ended — the arbitrators ordered Ohio Reinsurance to pay more than $20 million — but the district court in California has yet to enforce the award. Appellants are resisting enforcement on the ground that for two weekends during the arbitration the neutral arbitrator shared a hotel room with a female attorney representing Pacific Reinsurance. The arbitrators’ interim award remains in force, but appellants insist that nothing with the appellation “interim” may be registered under § 1963. If as appellants say the district court in California entered an injunction, then they have been in contempt of court for more than two years and have a lot of explaining to do. Traditional injunctions (orders “to do”) are not registrable under § 1963, Stiller v. Hardman, 324 F.2d 626, 628 (2d Cir.1963), because that would be pointless: they act in personam nationwide. Leman v. Krentler-Amold Hinge Last Co., 284 U.S. 448, 451-52, 52 S.Ct. 238, 239-40, 76 L.Ed. 389 (1932). Some orders to pay are injunctions, Bogosian v. Wolookojian Realty Corp., 923 F.2d 898, 900-02 (1st Cir.1991); cf. Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 144-45 (7th Cir.1987). Most orders to pay are not, however, and the normal rule is that even interlocutory orders to pay money may not be appealed as injunctions. People Who Care v. Rockford Board of Education, 921 F.2d 132 (7th Cir.1991); Ueh-lein v. Jackson National Life Insurance Co., 794 F.2d 300, 302 (7th Cir.1986). We need not try to locate the indistinct line between these categories, for district judges can write many orders either way. Judge Hatter, who entered this order, treated it as a money judgment, calling for a supersedeas bond as the price of non-enforcement and leaving enforcement in private hands. At all events, § 1963 does not distinguish money judgments from “injunc-tive” orders to pay. It allows registration of “[a] judgment in" }, { "docid": "2202106", "title": "", "text": "§ 1292(b). According to the parties, § 1291 furnishes all necessary authority: first because Fed.R.Civ.P. 54(b) governs the order of September 25, and second because the award is a “collateral order” appealable on the theory of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and its intellectual forbear Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848). The first of these founders because Rule 54(b) allows the entry of judgment only with respect to the final disposition of a claim for relief. Attorneys’ fees are not a separate claim for relief, Mulay Plastics, Inc. v. Grand Trunk Western R.R., 742 F.2d 369, 371 (7th Cir.1984), and as their name implies “interim” fees are not the last word on the subject. What is more, Rule 54(b) comes into play “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Auriemma v. Chicago, 906 F.2d 312 (7th Cir.1990). This record contains neither the “express determination” nor the “express direction”—no surprise, for the judge was addressing a motion under § 1292(b). It is, then, the collateral order doctrine or nothing. Awards of attorneys’ fees are ap-pealable independently of the merits. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Although interim awards are not final in the traditional sense, because the court may award more later (or direct the plaintiffs to repay the money if they ultimately fail to establish an entitlement to relief), we have held that they are appealable under the collateral order doctrine when the defendant may have difficulty getting the money back. Richardson v. Penfold, 900 F.2d 116 (7th Cir.1990); Palmer v. Chicago, 806 F.2d 1316 (7th Cir.1986). Accord, Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir.1989); Webster v. Sowders, 846 F.2d 1032 (6th Cir.1988). Contra, Rosenfeld v. United States, 859 F.2d 717 (9th Cir.1988). Because awards" }, { "docid": "21413959", "title": "", "text": "whom fees were paid over by their clients pursuant to court order to repay the fees should the order be reversed. Id. In the instant case, the government was ordered to pay the interim fees directly to counsel for Rosenfeld, thus satisfying Palmer’s concerns. Nor does the threatened harm compare to that which convinced the Sixth Circuit to grant collateral order review in Webster v. Sowders, 846 F.2d 1032 (6th Cir.1988). In that case, the district court had imposed upon the State of Kentucky a prospective burden of large monthly fee payments with no definite cutoff date, despite the recipient’s counsel’s concession that repayment in the event of appellate reversal could not be assured. Id. at 1035. Palmer also distinguished its holding from Hastings v. Maine-Endwell, 676 F.2d 893, based on the Palmer district court’s intention to make its award final and not subject to any revision. 806 F.2d at 1320. In Hastings, the district court preserved the option to modify its interim award upon granting a final award. 676 F.2d at 897. Similarly, here, Judge Patel clearly contemplates revising Rosenfeld's fee award at the close of the litigation. Furthermore, subsequent Seventh Circuit cases have emphasized the narrowness of Palmer’s holding. See Lac Courte, 829 F.2d at 602; see also Sandwiches, Inc. v. Wendy’s Int’l., Inc., 822 F.2d 707, 711 (7th Cir.1987). Following their lead, we hold that for an interim fee award to come under the collateral order exception, the government bears the burden of showing that ultimately it could not obtain repayment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 829 F.2d at 602. The government has not made such a showing. III. Appealability under the Forgay-Conrad Hardship Exception The government also argues that this case falls under the “hardship” rule of Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848), which permits immediate appeal if the order “requires the immediate turnover of property and subjects the party to irreparable harm if the party is forced to wait until the final outcome of the litigation.” Matter of Hawaii Corp., 796 F.2d 1139, 1143" }, { "docid": "12842307", "title": "", "text": "liability, a final order compelling the remaining payments (no longer \"interim\") will be appropriate. Because the court's June 6 order is subject to these contingencies, we consider it interlocutory and not final. We have jurisdiction of an appeal from an interlocutory order if it grants or refuses an injunction. 28 U.s.c. § 1292(a)(1). On its face the order appears to grant an injunction compelling payments on and after July 1, 1985, and refuses an injunction as to payments scheduled before that date. This court has noted the question whether an order compelling payment of interim liability is an injunction appeal-able under §~ 1292(a)(1). Robbins, 800 F.2d at 642, n. 2. It had been held that an order compelling a past due payment \"is appealable only if it `might have a \"serious, perhaps irreparable, consequence,\" and [if] the order can be \"effectually challenged\" only by immediate appeal.'\" I.A.M. Nat. Pension Fund v. Cooper Industries, Inc., 789 F.2d 21, 24 (D.C.Cir.1986). See also Korea Shipping Corporation v. New York Shipping Association, 811 F.2d 124, 126 (2nd Cir.1987). We conclude, however, that we have jurisdiction of both appeals, McNi-cholas' as well as the Trustees'. As will be seen, we are of the opinion that a district court has a measure of discretion whether or not to use injunctive power to compel interim payments in these situations. Because the decision to compel payments beginning July 1, 1985, as well as to refuse to compel immediate payment of installments previously due, had a \"serious, perhaps irreparable, consequence,\" subject to effectual challenge only by immediate appeal, the order at least has consequences similar to an injunction and is appealable, by each party, respectively, as an interlocutory grant, i~ part, and refusal, in part, of an injunction. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 s.ct. 993, 996, 67 L.Ed.2d 59 (1981); Donovan v. Robbins, 752 F.2d 1170, 1174 (7th Cir.1985). We recognize the congressional purpose behind a collection procedure which has been characterized as \"pay now, dispute later.\" Robbins, 636 F.Supp. at 677 and 680, 800 F.2d at 642. We also recognize that compelled" }, { "docid": "23552631", "title": "", "text": "fees will be awarded when practical — presumably well before 2016. Though there is scant indication it intends to do so, the Court is free to revisit its allocation of fees through June 30, 2001. Moreover, it has expressly declined to make a final fee award so that the Gunter factors may be applied. In this context, while I do not share my colleagues’ view that the conclusiveness prong is clearly not satisfied, the current state-of-play nonetheless tilts to the conclusion that conclusiveness does not yet exist. B. The case law addressing whether orders respecting interim fee awards fit within the collateral order doctrine places considerable weight on the fact that the fee awards can generally be reviewed at the conclusion of the litigation in the district court. However, an interim fee order may be reviewable when the “mere payment of the fees would make them unrecoverable.” Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir.1980); see also, e.g., Palmer v. City of Chicago, 806 F.2d 1316, 1319-20 (7th Cir.1986). The Seventh Circuit Court of Appeals has addressed the unreviewability prong of the collateral order doctrine in the context of interim fee awards in a series of cases beginning with Palmer, in which the Court held that an interim fee award was appeal-able when fees were to be paid not to attorneys but to a “revolving fund” for prisoner-plaintiffs. 806 F.2d at 1319-20; see also, e.g., People Who Care v. Rockford Bd. of Educ., 171 F.3d 1083, 1086 (7th Cir.1999); Constr. Indus. Ret. Fund v. Kasper Trucking, Inc., 10 F.3d 465, 468 (7th Cir.1993); People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134-35 (7th Cir.1991); Richardson v. Penfold, 900 F.2d 116, 117-18 (7th Cir.1990). In a subsequent case, the Seventh Circuit indicated that although interim awards “are not final in the traditional sense ... [,] they are appealable under the collateral order doctrine when the defendant may have difficulty getting the money back.” People Who Care, 921 F.2d at 134. In this respect, the crucial consideration in determining that an order is immediately ap-pealable is whether “postponing" }, { "docid": "15070374", "title": "", "text": "93 L.Ed. 1528 (1949), the Supreme Court created the collateral order doctrine permitting review of an interlocutory order if it involves a separable claim that has been conclusively determined and is collateral to the merits, too important to be denied review, and too independent of the merits to defer review until a final decision has been rendered. The Court restated its position in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978), allowing review of non-final orders which conclusively determine a disputed question, resolve an important issue completely separate from the merits, and are effectively unreviewable on appeal from final judgment. The doctrine of practical finality derives from Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848), in which the Court held that when the [interim] decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court.... 47 U.S. (6 How.) at 204. See also Ortho Pharmaceutical Corp. v. Sona Distribs., 847 F.2d 1512, 1515 (11th Cir.1988); In re Martin Bros., 796 F.2d at 1437 (review warranted when order directs “ ‘immediate delivery of physical property and subjects the losing party to irreparable harm’ ” if review delayed until case concluded). Finally, Gillespie v. U.S. Steel Corp., 379 U.S. 148, 153-54, 85 S.Ct. 308, 311-12, 13 L.Ed.2d 199 (1964), provides that even an order of marginal finality should be accorded immediate review if the question presented is fundamental to further conduct of the case. See also In re Martin Bros., 796 F.2d at 1437. While neither PaineWebber nor Ruden Barnett take the position that all of the sanctions imposed by the district court are appealable at this time, both maintain that some of the sanctions are" } ]

[ { "docid": "22652138", "title": "", "text": "set forth in Federal Rule of Civil Procedure 52(a): “Findings of fact 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.” The question before us, then, is whether the Court of Appeals erred in holding the District Court’s finding of discrimination to be clearly erroneous. Although the meaning of the phrase “clearly erroneous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles, as the Fourth Circuit itself recognized, is that “[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 (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 (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. United States v. Yellow Cab Co., 338 U. S. 338, 342 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456" } ]

[ { "docid": "23268729", "title": "", "text": "issue is appropriate only where that proffer “contradicts former testimony during which [the party] had been examined at length on [that] issue” (internal quotation marks omitted)). In the present case, although plaintiffs’ counsel repeatedly asked Corio whether he had “moved” to Pennsylvania, Corio was not asked whether he had intended that move to be permanent. Accordingly, Corio was entitled to testify at the evidentiary hearing as to whether or not he had that intent. Second, a party’s deposition testimony as to a given fact does not foreclose a trial or an evidentiary hearing where that testimony is contradicted by evidence other than the deponent’s subsequent affi davit, for when such other evidence is available, the concern that the proffered issue of fact is a mere “sham” is alleviated. See, e.g., Delaney v. Deere & Co., 219 F.3d 1195, 1196 n. 1 (10th Cir.2000) (“While a party may not defeat summary judgment by contradicting deposition testimony in a subsequent affidavit, new evidence may furnish a good faith basis for the inconsistency.”). In the present case, the court properly allowed Corio to introduce documentary evidence to support his contention that his permanent home had at all relevant times remained in New York with his parents. To the extent that there is a conflict in a witness’s testimony, such a conflict affects the weight of the testimony, not its admissibility. See, e.g., United States v. Rodriguez, 968 F.2d 130, 143 (2d Cir.) cert. denied, 506 U.S. 847 (1992). The weighing of the evidence is a matter for the trier of fact, not the court of appeals, and the “clearly erroneous” standard of review is a deferential one. The mere presence of evidence to support an inference contrary to that drawn by the trier of fact does not mean that the factual findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). Decisions as to whose testimony to credit and as to which of competing inferences to draw are entirely within the province of the trier of fact. See, e.g., Anderson v. Bessemer City, 470 U.S. 564," }, { "docid": "15900403", "title": "", "text": "district court properly concluded that this regulation means that the plan administrator must make reasonable efforts to ensure each plan participant’s actual receipt of the plan documents.. We see no error of law in the district court’s decision. After hearing the evidence at trial, the district court found that AlliedSignal’s efforts were not reasonably calculated to ensure actual receipt of the summary plan description by all plan participants because its distribution procedures could easily have missed some participants. The court’s findings after a bench trial may not be overturned unless they are “clearly erroneous,” Fed.R.Civ.P. 52(a), and “[w]here 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, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). Even when the trial court’s findings of fact are based on inferences from other facts, the appellate court must accept those findings unless they are clearly erroneous and may not conduct a de novo review. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504. The fact that there may have been evidence to support an inference contrary to that drawn by the court does not mean that the findings are clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618-19 (2d Cir.1991). Although AlliedSignal argues that the district court erred by “concluding that AlliedSignal was required to actually place a copy of the SPD [summary plan description] in Mr. Leyda’s hands” (AlliedSignal brief on appeal at 8), and by “basing its ruling on speculation that employees may not have understood the importance of the benefits meetings that AlliedSignal conducted” (id. at 9), there are no such findings in the Trial Decision. Rather, the court found that some of the 1,500 employees, though not traveling or on leave, might have missed the meetings “[f]or any number of reasons, including a busy schedule or lack of awareness as to the importance of the meeting.” Trial Decision at" }, { "docid": "8395931", "title": "", "text": "the existence of discriminatory intent are findings of fact, Pullman-Standard v. Swint, 456 U.S. 273, 287-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), as are findings of discrimination, Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), and causation, see, e.g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir.1973), and such findings may not be set aside unless they are clearly erroneous, see, e.g., Anderson v. Bessemer City, 470 U.S. at 573, 105 S.Ct. 1504; Pullman-Standard v. Swint, 456 U.S. at 290, 102 S.Ct. 1781; Fed.R.Civ.P. 52(a). Assessments of the credibility of witnesses are peculiarly within the province of the trier of fact and are entitled to considerable deference. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-75, 105 S.Ct. 1504. “[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.” Anderson v. Bessemer City, 470 U.S. at 575, 105 S.Ct. 1504. And “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The fact that there may have been evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The weight of the evidence is an argument to be made to the factfinder at trial, not a ground for reversal on appeal. See, e.g., Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (per curiam); United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). In the present case, contrary to Joseph’s contention, the" }, { "docid": "21070639", "title": "", "text": "of repeated review. Plainly it was the duty of IRS employees to receive Form 872 statute-of-limitations waivers from any given taxpayer and to record them in the IRS data files for that taxpayer’s pertinent year. Although Malkin argued that the IRS records should be deemed unreliable, hypothesizing that an IRS agent who had failed to get him to sign Form 872 would have had a motive to forge his signature and make a false entry into the database, he presented no evidence that any such improper conduct had occurred. Further, according to the testimony of the government’s witnesses, the automatic dating feature of the IRS computer system prevents the backdating of entries. The trial court plainly was entitled to credit the IRS employees’ descriptions of the agency’s operations; and we see no abuse of discretion, see generally United States v. Lavin, 480 F.2d 657, 662 (2d Cir.1973), in the court’s ruling that the transcripts were sufficiently reliable to be received in evidence despite Malkin’s speculations. We also reject Malkin’s contention that the evidence was insufficient to support a finding that he signed a Form 872 in March 1983. The district court’s findings of fact following a bench trial “shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52(a). The fact that there was evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). It is within the province of the trier of fact to decide whose testimony should be credited, and we are not allowed to second-guess those credibility assessments. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Further, “[w]here 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; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). Here, the IDRS literal transcript of Malkin’s account for his 1979 tax year contained the" }, { "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": "23062173", "title": "", "text": "that basis was valid. For the reasons that follow, we reject this contention as well. The PMPA provides that “[t]he franchisor shall bear the burden of going forward with evidence to establish as an affirmative defense that [its] termination or nonrenewal was permitted under section 2802(b) ....” 15 U.S.C § 2805(c). Thus, after the franchisee has presented evidence of a termination or nonrenewal, the burden is on the franchisor to prove that its action was permitted by the PMPA. See, e.g., Four Corners Service Station, Inc. v. Mobil Oil Corp., 51 F.3d 306, 310 (1st Cir.1995); Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1569 (11th Cir.1987). There is no dispute that Motiva sent the Termination Letter informing Ceraso that his franchise would be terminated for violations of the zoning Regulation. Thus, Motiva had the burden of proving that Ceraso had violated the Regulation. The district court’s findings of fact after a bench trial are not to be overturned unless they are clearly erroneous. See, e.g., Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This standard applies whether those findings are based on witness testimony, or on documentary evidence, or on inferences from other facts. See, e.g., id. at 574, 105 S.Ct. 1504; Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1176 (2d Cir.1995). In reviewing findings for clear error, we are not allowed to second-guess either the trial court’s credibility assessments or its choice between permissible competing inferences. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504. Even if the appellate court might have weighed the evidence differently, it may not overturn findings that are not clearly erroneous. See id. at 574, 105 S.Ct. 1504. The weight of the evidence is not a ground for reversal on appeal, see, e.g., Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (per curiam), and the fact that there may have been evidence to support an inference contrary to that drawn by the trial court does not mean that the findings are clearly erroneous, see, e.g., Healey" }, { "docid": "22044078", "title": "", "text": "not allowed to second-guess either the trial court’s credibility assessments, see id., or its choice as to which of competing inferences to draw. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504. The mere fact that there was evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The decisions as to whose testimony to credit and which of permissible inferences to draw are solely within the province of the trier of fact, and “[w]here 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. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). In challenging the dismissal of her claim of gender discrimination, Cifra states that a Title VII plaintiff need only demonstrate that her employer has engaged in prohibited conduct against her as an individual; there is no additional requirement that she demonstrate that the employer has engaged in such conduct against other female employees as well, (Cifra brief on appeal at 20), and she argues, inter alia, that in this case [t]he court erred, as a matter of law, in its interpretation of the requirements for a Title VII claim of gender discrimination when it relied on its finding that other women in Ms. Cifra’s department did not experience discrimination to decide that Ms. Cifra’s claim “necessarily fails.” (Cifra brief on appeal at 19 (quoting 62 F.Supp.2d at 745).) She also states that the court “ignored Ms. Cifra’s evidence that similarly situated male employees received more favorable treatment and were not terminated despite the same alleged performance problems.” Id. at 23 (internal quotation marks omitted). We reject Cifra’s characterization of the district court’s ruling. First, her contention that the court found that her claim necessarily failed simply for lack of credible evidence that other women were treated worse than the" }, { "docid": "23127434", "title": "", "text": "recovery of damages was sustainable only under Title VII. The district court’s application of the damages ceiling was therefore not error. B. The Rejection of Hawkins’s Claim for Denial of Promotions Hawkins also contends that the district court erred in failing to find that LSC discriminated on the basis of race or gender in denying her promotions. We see no basis for reversal. To prevail on a denial-of-promotion claim, the plaintiff must, inter alia, prove by a preponderance of the evidence that the failure to promote was actually motivated in whole or in part by unlawful discrimination. See, e.g., Stern v. Trustees of Columbia University, 131 F.3d 305, 312 (2d Cir.1997); Fisher v. Vassar College, 114 F.3d 1332, 1346-47 (2d Cir.1997) (en banc), cert. denied, — U.S. -, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). A trial court’s conclusions as to the employer’s motivation and the existence of discriminatory intent are findings of fact, see, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.1994), and may not be set aside on appeal unless they are clearly erroneous, see, e.g., Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. at 573, 105 S.Ct. 1504; Cornwell v. Robinson, 23 F.3d at 706. The decision as to whose testimony to credit and as to which of competing inferences to draw is within the province of the trier of fact, and “[w]here there are two permissible views of the evidence, the factfin-der’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. at 574, 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.” Id. at 573-74, 105 S.Ct. 1504. The findings challenged here are far from clearly erroneous. Lipofsky testified that" }, { "docid": "22956056", "title": "", "text": "believe some parts and disbelieve other parts of the testimony of any given witness. We are not allowed to second-guess the court’s credibility assessments. See, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504. Further, “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The fact that there may have been evidence to support an inference contrary to that drawn by the trial court does not mean that the findings made are clearly erroneous. See, e.g., Palazzo v. Corio, 232 F.3d 38, 44 (2d Cir.2000); Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618-19 (2d Cir.1991). [W]hen the district court is sitting as trier of fact, it has no obligation to draw a given inference merely because it is supportable; nor has it any obligation, in its capacity as trier of fact, to view the evidence in the light most favorable to [a particular party]. The obligations of the court as the trier of fact are to determine which of the witnesses it finds credible, which of the permissible competing inferences it will draw, and whether the party having the burden of proof has persuaded it as factfinder that the requisite facts are proven. Cifra v. General Electric Co., 252 F.3d 205, 215 (2d Cir.2001). Given the standards governing our review of the district court’s rulings after the bench trial, we have little difficulty in concluding that the rejection of Diesel’s claims should be affirmed. We reach the opposite conclusion with respect to the ruling that Greystone was entitled to unjust enrichment damages from Props. B. The Dismissal of Diesel’s Contract Claims against Greystone In order to recover from a defendant for breach of contract, a plaintiff must prove, by a preponderance of the evidence, (1) the existence of a contract between itself and that defendant; (2) performance of the plaintiffs obligations under the contract; (3) breach of the contract by that defendant; and (4) damages to" }, { "docid": "22694536", "title": "", "text": "Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). Thus the Court ruled that speculation and conjecture become legally impermissible “[o]nly when there is a complete absence of probative facts to support the conclusion reached.” Id. It further cautioned that “the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” Id. Although Lavender involved a speculation challenge to a jury verdict, the Court articulated these principles categorically. Thus, we conclude that Lavender’s principles apply to our review of administrative findings of fact, just as they support and explain the “great deference” this Court accords to a district court’s resolution of competing inferences after a civil bench trial. See Sweeney v. Research Found, of State Univ. of N.Y., 711 F.2d 1179, 1185 (2d Cir.1983); see also Chen v. Bd. of Immigration Appeals, 435 F.3d 141, 145 (2d Cir.2006) (drawing analogy between review of immigration findings and findings at bench trial and noting that, in latter context, “we have been authoritatively instructed to uphold a finding unless we are ‘left with the definite and firm conviction that a, mistake has been committed,’ ”) (quoting Inwood Laboratories, Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. 1504. Rather, a reviewing court must defer to that choice so long as the deductions are not “illogical or implausible.” Id. at 577, 105 S.Ct. 1504; accord Healey v. Chelsea Res., Ltd., 947 F.2d 611, 618 (2d Cir.1991) (“[WJhere the evidence would support either of competing inferences, the fact that this Court might have drawn one inference does not entitle it to overturn the trial court’s choice of the other.”). A corollary is that record support for a contrary inference — even one more plausible or more natural — does not suggest error. See Joseph v. N.Y. City Bd." }, { "docid": "22694537", "title": "", "text": "and noting that, in latter context, “we have been authoritatively instructed to uphold a finding unless we are ‘left with the definite and firm conviction that a, mistake has been committed,’ ”) (quoting Inwood Laboratories, Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. 1504. Rather, a reviewing court must defer to that choice so long as the deductions are not “illogical or implausible.” Id. at 577, 105 S.Ct. 1504; accord Healey v. Chelsea Res., Ltd., 947 F.2d 611, 618 (2d Cir.1991) (“[WJhere the evidence would support either of competing inferences, the fact that this Court might have drawn one inference does not entitle it to overturn the trial court’s choice of the other.”). A corollary is that record support for a contrary inference — even one more plausible or more natural — does not suggest error. See Joseph v. N.Y. City Bd. of Educ., 171 F.3d 87, 93 (2d Cir.1999); Healey, 947 F.2d at 619. A district court’s findings of fact are reviewed for “clear error,” United States v. Coppola, 85 F.3d 1015, 1019 (2d Cir.1996) (citing Fed.R.Civ.P. 52(a)), and an IJ’s findings are reviewed for “substantial evidence.” Secaidar-Rosales, 331 F.3d at 306-07. These standards of review bespeak no lesser deference to an IJ than to a district judge when each draws inferences from the evidence as a finder of fact. So long as there is a basis in the evidence for a challenged inference, we do not question whether a different inference was available or more likely. As this Court has recognized, “the line between reasonable inference-drawing and impermissible speculation is necessarily imprecise,” Huang v. Gonzales, 453 F.3d 142, 147 (2d Cir.2006); see also Chen, 435 F.3d at 145 — as is perhaps to be expected, given that some measure of speculation may be necessary in drawing an inference, see Lavender, 327 U.S. at 653, 66 S.Ct. 740. “ ‘[A]n inference is not a suspicion or" }, { "docid": "23268730", "title": "", "text": "court properly allowed Corio to introduce documentary evidence to support his contention that his permanent home had at all relevant times remained in New York with his parents. To the extent that there is a conflict in a witness’s testimony, such a conflict affects the weight of the testimony, not its admissibility. See, e.g., United States v. Rodriguez, 968 F.2d 130, 143 (2d Cir.) cert. denied, 506 U.S. 847 (1992). The weighing of the evidence is a matter for the trier of fact, not the court of appeals, and the “clearly erroneous” standard of review is a deferential one. The mere presence of evidence to support an inference contrary to that drawn by the trier of fact does not mean that the factual findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). Decisions as to whose testimony to credit and as to which of competing inferences to draw are entirely within the province of the trier of fact. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Applying the above principles in the present appeal, we find no basis for reversal. We see neither an error in the district court’s application of the legal principles discussed above, nor, in light of the evidence in the record, including that described in Part I above, any clear error in the district court’s factual findings. Although contrary factual inferences might have been drawn, the findings made were not clearly erroneous. We affirm substantially for the reasons stated in Judge Nick-erson’s Memorandum and Order dated November 3,1999. We have considered all of plaintiffs’ contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed." }, { "docid": "22956055", "title": "", "text": "Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 84 L.Ed.2d 518 (1985); Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d Cir.1994). The “clearly erroneous” standard applies whether the findings are based on witness testimony, or on documentary evidence, or on inferences from other facts. See, e.g., Anderson, 470 U.S. at 574, 105 S.Ct. 1504; Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1176 (2d Cir.1995). In deciding whether factual findings are clearly erroneous, we are required to “give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed.R.Civ.P. 52(a)(6). It is within the province of the district court as the trier of fact to decide whose testimony should be credited. See, e.g., Anderson, 470 U.S. at 574, 105 S.Ct. 1504. The court is also entitled, just as a jury would be, see, e.g., Robinson v. Cattaraugus County, 147 F.3d 153, 160 (2d Cir.1998); Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987), to believe some parts and disbelieve other parts of the testimony of any given witness. We are not allowed to second-guess the court’s credibility assessments. See, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504. Further, “[w]here there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The fact that there may have been evidence to support an inference contrary to that drawn by the trial court does not mean that the findings made are clearly erroneous. See, e.g., Palazzo v. Corio, 232 F.3d 38, 44 (2d Cir.2000); Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618-19 (2d Cir.1991). [W]hen the district court is sitting as trier of fact, it has no obligation to draw a given inference merely because it is supportable; nor has it any obligation, in its capacity as trier of fact, to view the evidence in the light most favorable to" }, { "docid": "23062175", "title": "", "text": "v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The decisions as to whose testimony to credit and which of permissible inferences to draw are sole ly within the province of the trier of fact, and “[w]here 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. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The district court here, focusing on the terms of the Regulation, found that Moti-va’s evidence was insufficient to persuade the court that, during the period in question, there were more than five unscreened cars that had been repaired or were awaiting repair on any precise date or for any more-than-minimal duration. We see no clear error in that finding. Plainly, none of the testimonial evidence required a contrary finding. For example, although Marsala testified that he had counted the number of cars on the premises, he admitted that he had not determined whether any of the vehicles were awaiting repair or had been repaired. His failure to make that determination is hardly surprising given his apparent misim-pression, as revealed in both the initial Order To Comply and the Revocation Application to the ZBA, that the Regulation limited the total number of unscreened cars without regard to their repair status. Ascher testified that he had estimated the total number of vehicles on the lot on each of his visits, placing that number at 25 to 35, excluding vehicles in the bays, in a fenced area, and at the gasoline pumps. But he too conceded that he had no information as to the repair status of any of the vehicles. And although the Gall affidavit colorfully stated the view that there were too many cars on Ceraso’s premises, it likewise provided no information as to the vehicles’ repair status. The one trial witness who appeared to have any information as to the number of cars on the premises that were repaired or awaiting repair was Seagren, who had" }, { "docid": "22908920", "title": "", "text": "well that the alleged misrepresentations were a “substantial factor” in or a “significant contributing cause” of his investment decision, see, e.g., Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 540 F.2d 27, 33-34 (2d Cir.1976). Matters of misrepresentation, knowledge, reliance, causation, and scienter are questions of fact, and the trial court’s findings as to those facts may not be set aside unless they are clearly erroneous, see Fed.R.Civ.P. 52(a). Assessment of the credibility of witnesses is peculiarly within the province of the trier of fact and is entitled to considerable deference, Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), and “when 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. at 1512. Further, where the evidence would support either of competing inferences, the fact that this Court might have drawn one inference does not entitle it to overturn the trial court’s choice of the other. Id. at 574, 105 S.Ct. at 1511 (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”); United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). In the present case, the gist of Healey’s complaint was that defendants had misled him principally by understating the amount of capital Chelsea needed to satisfy its payables and to bring its ore processing equipment up to speed. The evidence at trial, including the following, was sufficient to support the district court’s findings that Healey failed to prove misrepresentations and reliance. Dominick’s vice president Field first contacted Healey concerning Chelsea on September 11, 1987. Between that initial contact and Healey’s delivery of his certified check for CN$1.625 million on October 13, Healey had communications with numerous individuals with respect to the needs and prospects of Chelsea. Most of his" }, { "docid": "21070640", "title": "", "text": "to support a finding that he signed a Form 872 in March 1983. The district court’s findings of fact following a bench trial “shall not be set aside unless clearly erroneous.” Fed.R.Civ.P. 52(a). The fact that there was evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). It is within the province of the trier of fact to decide whose testimony should be credited, and we are not allowed to second-guess those credibility assessments. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Further, “[w]here 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; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). Here, the IDRS literal transcript of Malkin’s account for his 1979 tax year contained the code “560,” representing receipt from him of an executed Form 872, and the description “ASSESSMENT STATUTE EXPIRATION DATE EXTENDED TO 04-15-1984,” along with the date “03-16-1983” (Government Exhibit A). The nonverbal transcript for Malkin for 1979 likewise contained the code “560,” showed the date “03161983,” and indicated IRS receipt on day “075” of the year (Government Exhibit M). In addition, Carter testified that she would have reviewed Malkin’s file to be sure there was no statute-of-limitations problem and if the necessary waivers had not been on file she would not have negotiated the settlement. In light of this evidence, we see no clear error in the trial court’s finding that on March 16, 1983, i.e., prior to the expiration of the original statute-of-limitations period, the IRS received a Form 872 executed by Malkin, extending that period by one year. As Malkin conceded having consented, during that one-year period, to an indefinite extension of the limitations period, the IRS’s eventual assessment was not time-barred. CONCLUSION We have considered all of Malkin’s arguments on this appeal and" }, { "docid": "23062174", "title": "", "text": "573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This standard applies whether those findings are based on witness testimony, or on documentary evidence, or on inferences from other facts. See, e.g., id. at 574, 105 S.Ct. 1504; Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1176 (2d Cir.1995). In reviewing findings for clear error, we are not allowed to second-guess either the trial court’s credibility assessments or its choice between permissible competing inferences. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504. Even if the appellate court might have weighed the evidence differently, it may not overturn findings that are not clearly erroneous. See id. at 574, 105 S.Ct. 1504. The weight of the evidence is not a ground for reversal on appeal, see, e.g., Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (per curiam), and the fact that there may have been evidence to support an inference contrary to that drawn by the trial court does not mean that the findings are clearly erroneous, see, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The decisions as to whose testimony to credit and which of permissible inferences to draw are sole ly within the province of the trier of fact, and “[w]here 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. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The district court here, focusing on the terms of the Regulation, found that Moti-va’s evidence was insufficient to persuade the court that, during the period in question, there were more than five unscreened cars that had been repaired or were awaiting repair on any precise date or for any more-than-minimal duration. We see no clear error in that finding. Plainly, none of the testimonial evidence required a contrary finding. For example, although Marsala testified that he had counted the number of cars on the premises, he admitted that he had not" }, { "docid": "22908926", "title": "", "text": "to which of competing inferences to draw was within the province of the district court as trier of fact. That court was unpersuaded that there had been any misrepresentations by Dominick Canada or any reliance, reasonable or otherwise, by Healey. In light of the evidence that Field’s statements were hedged, that even the key report given Healey by Field, i.e., the Wong Report, was itself hedged, that Healey proclaimed his own expertise to Field and Chelsea, and that Healey was given complete information by Chelsea as to its financial needs prior to making his investment, we cannot say that the court’s findings are clearly erroneous. B. The Evidentiary Rulings Healey’s challenges to several of the trial court’s evidentiary rulings do not lead to a different result. These rulings principally curtailed Healey’s testimony as to (1) reliance, (2) his September 14 conversation with Field, and (3) October 6 statements of McAlister as to the latter’s reasons for advocating the City Resources proposal. The court also excluded certain documents that Healey sought to introduce in evidence. Though some of these rulings are troubling, they do not require reversal. The trial court has broad discretion over the admission of evidence. Its evaluation of relevance is entitled to substantial deference, see, e.g., George v. Celo- tex Corp., 914 F.2d 26, 28 (2d Cir.1990) (“district court’s determination of relevance will not be disturbed unless it evidences an abuse of discretion”), and even proof that is relevant may permissibly be curtailed to avoid the “needless presentation of cumulative evidence,” Fed.R.Evid. 403. Evidentiary rulings ordinarily will not be overturned absent an abuse of discretion, see, e.g., United States v. Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); In re Martin-Trigona, 760 F.2d 1334, 1344 (2d Cir.1985) (evidentiary rulings generally not to be disturbed unless “ ‘manifestly erroneous,’ ” quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962)), and even an erroneous ruling will not lead to reversal unless affirmance would be “inconsistent with substantial justice,” Fed.R.Civ.P." }, { "docid": "22044077", "title": "", "text": "the reasons that follow, we find merit in the second contention, but not the first. A. The Claim of Gender Discrimination Title VII provides, inter alia, that “[i]t shall be an unlawful employment practice for an employer to ... discharge any individual ... because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). A finding of discrimination is a finding of fact, see, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), as are findings of discriminatory intent, see, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), and causation, see, e.g., Joseph v. New York City Board of Education, 171 F.3d 87, 93 (2d Cir.), cert. denied, 528 U.S. 876, 120 S.Ct. 182, 145 L.Ed.2d 154 (1999); Sedor v. Frank, 42 F.3d 741, 746 (2d Cir.1994), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 283 (1995). After a bench trial, this Court reviews a district court’s factual findings for clear error. See Fed.R.Civ.P. 52(a). In so doing, we are not allowed to second-guess either the trial court’s credibility assessments, see id., or its choice as to which of competing inferences to draw. See, e.g., Anderson v. Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504. The mere fact that there was evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The decisions as to whose testimony to credit and which of permissible inferences to draw are solely within the province of the trier of fact, and “[w]here 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. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). In challenging the dismissal of her claim of gender discrimination, Cifra states that a Title VII plaintiff need only demonstrate that her employer has" }, { "docid": "8395932", "title": "", "text": "not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. at 575, 105 S.Ct. 1504. And “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 574, 105 S.Ct. 1504; see United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The fact that there may have been evidence to support an inference contrary to that drawn by the trier of fact does not mean that the findings were clearly erroneous. See, e.g., Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir.1991). The weight of the evidence is an argument to be made to the factfinder at trial, not a ground for reversal on appeal. See, e.g., Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (per curiam); United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). In the present case, contrary to Joseph’s contention, the district court made detailed findings as to the reasons for the denial of tenure to Joseph as principal of PS 27, and it amply supported its findings with citations to testimony it credited and to documents introduced into evidence. Announcing its findings of fact from the bench, the trial court discussed the evidence as to each of the four years in Joseph’s probationary period. As to the first year, 1987-1988, the court found that Joseph “was sent several letters about problems at PS 27 and deficiencies in her supervisory performance,” including a March 31, 1988 letter expressing concerns relayed by PTA members as to, inter alia, “discipline at lunchtime, particularly in the school yard”; “children in the hallways of the school, in the bathrooms of the school and the lack of a standard procedure for dealing with students whose teachers are absent, for whom there is no substitute teacher”; and “dismissal procedures, disruptive use of the public address system during the school day and the need for a uniform discipline code as well as the" } ]

[ { "docid": "22334368", "title": "", "text": "in question was narcotics. See United States v. Morello, 250 F.2d 631, 633-634 (2d Cir., 1957). The appellants who have been convicted on substantive counts do not challenge these principles of law. They contend, instead, that the trial judge did not adequately compartmentalize the circumstantial evidence as it was relevant to the proof of narcotics in a particular substantive count charged against a particular defendant. It is contended that the jury was, in essence, instructed that in determining the guilt of one defendant under a substantive count of the indictment, they should weigh evidence relating to other substantive counts, to other defendants, and to transactions in which the particular defendant was not even involved. The judge’s instruction is therefore contended to violate the principle laid down in United States v. Bufalino, 285 F.2d 408 (2d Cir., 1960), that proof in a mass conspiracy trial must be individualized and compartmentalized, defendant by defendant and count by count. Evidence admissible to prove only the conspiracy was, it is argued, improperly employed to prove the individual substantive counts. We hold that Judge Herlands’ instructions on the use of circumstantial evidence to determine that the material in question was narcotics in the various substantive counts were adequate. He charged that there were seven categories of circumstantial evidence which the jury might consider in determining whether a given defendant had possession of or had imported the narcotic drug as charged in each substantive count: (1)' Rinaldo’s testimony that he had personally tested samples of the powder from each shipment; (2) the secrecy and' deviousness with which the transactions were handled (i. e., false-bottomed trunks, use of linings in the blankets, code words, etc.); (3) the fact that the substance in which they were dealing was a white powder; (4) the high prices paid in cash for the substance; (5) the lack of complaint on the part of the purchasers; (6) descriptive language used by certain of the defendants in connection with certain transactions; (7) the white powder in evidence which the United States chemist testified was heroin hydrochloride. A conviction on similar evidence was upheld" } ]

[ { "docid": "11320681", "title": "", "text": "the trial judge is required to instruct the jury as appellant now contends, Carbo v. United States, 314 F.2d 718, 735-738 (CA 9, 1963), cert. den. 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498, especially where, as here, he was not requested to do so. Rules 30 and 52 F.R.Crim.P. Having in mind that the principal evidence against Vida was direct testimony, with a minimal amount of hearsay admissions that to a large extent were otherwise corroborated, we find without merit the charge of error in this regard. 3. Denial of new trial. Appellant argues that because the jury acquitted all of the conspiracy count, Vida should have a new trial under counts two and three; this because the evidence admitted under the conspiracy count had been heard by the jury. We believe that what we have said above is sufficient answer to this question. Reliance here, however, is again placed on the dissenting opinion in Schaffer v. United States, 362 U.S. 511, 518, 80 S.Ct. 945. We need not speculate as to whether such dissent expresses the majority view of the present court. The case is not in point. There an indictment consisted of four counts, generally dealing with the interstate transportation of stolen goods. The substantive counts each charged separate and distinct offenses, but with one group of defendants participating in each of the events. Each of the others charged were named in only one of the substantive counts. The fourth count charged conspiracy by all. The defendants who were charged in all counts pleaded guilty, and the others were brought to trial together. The trial judge dismissed the conspiracy count at the close of the government’s case, but continued the trial as to the substantive counts. The majority opinion held that no prejudice had been shown and affirmed the convictions against a claim made on appeal that separate trials should have been ordered after dismissal of the conspiracy count. In disagreement, the dissent emphasized that each of the defendants tried was named only in one count describing an offense wholly unconnected with those charged as committed" }, { "docid": "4084985", "title": "", "text": "for conspiracy violations is prohibited, and that cumulative punishment for substantive offenses and a continuing criminal enterprise under § 848 does not violate the double jeopardy clause. Justice Blackmun explicitly recognized the propriety of charging substantive crimes and conspiracies separately, but held that there were no equally valid policy reasons for charging conspiracies and continuing criminal enterprises separately. 432 U.S. at 157. Absent explicit language to the contrary, we adhere to the well established view that conspiracy statutes do not foreclose punishment for substantive offenses. We see no reason to assume that § 848 is intended to cover substantive violations. This conclusion is consistent with our approach in United States v. Barnes, 604 F.2d 121, 155-56 (2 Cir.1979), cert. denied, 446 U.S. 907 (1980). There we upheld the district court’s decision not to impose sentence on the conspiracy count since the maximum statutory penalty had been imposed on the continuing criminal enterprise count; but we affirmed the sentences imposed for the various underlying substantive offenses. We vacate the sentences imposed on Mourad on the conspiracy counts (Counts 1 and 2, 21 U.S.C. §§ 846 and 963) and we remand his case to the district court with directions to reconsider the sentence imposed under § 848, keeping in mind that the district court may consider whether to increase the § 848 sentence. See McClain v. United States, 643 F.2d 911 (2 Cir.1981) (Van Graafeiland, J.). The lifetime special parole provisions imposed under Counts 4, 5, 7, 10, 11 and 12 are not to be disturbed. See United States v. Chagra, 669 F.2d 241, 261-62, 266 (5 Cir.), cert. denied, 459 U.S. 846 (1982). We have carefully considered all other claims of error raised by appellants and we find them to be without any merit whatsoever. Appellants were convicted after a fair trial of serious offenses committed beginning five years ago. We order that the mandate issue forthwith. All convictions are affirmed; the case of appellant Mourad is remanded solely for the purpose of reconsideration of his sentence in accordance with this opinion. . Mourad was convicted of unlawfully, wilfully and knowingly" }, { "docid": "8837790", "title": "", "text": "at least one of the conspiracy’s objectives. The government therefore concludes that the validity of the conspiracy convictions are in no wise jeopardized by our decision with respect to Count III. “We cannot agree. The government’s position ignores the fact that the crime of conspiracy is separate and distinct from the related substantive offense. It requires proof of the additional element of an agreement between the alleged co-conspirators. Pinkerton v. United States, 328 U.S. 640, [66 S.Ct. 1180, 90 L.Ed. 1489] (1946); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971). Hence, it is neither illogical nor impossible for a jury to find an alleged conspiracy nonexistent while, at the same time, convicting the defendants of the substantive offenses charged. “In the instant case, the possibility thus remains, albeit slim, that the jury found that the defendants engaged in a conspiracy to bribe Serota alone in spite of its guilty verdict on Count II. As a result, the defendants’ conspiracy convictions must be vacated and this case remanded to the district court for a new trial unless it determines that Count I, in its present form, is fatally defective in light of the conclusions reached herein.” . An examination of the verdict sheets is of no assistance in solving this dilemma. . 18 U.S.C. § 1014, provides in pertinent part: “Whoever knowingly makes any false statement or report ... for the purpose of influencing in any way the action of any bank the deposits of which are insured by the Federal Deposit Insurance Corporation upon any application ... or loan . shall be fined not more than $5,000 or imprisoned not more than two years, or both.” . By order of the district court of January 21, 1977, Fredenburgh was sentenced as follows (the numbering of the counts is that of the original indictment): “A. For a period of 5 years on each of Counts 1, 22, 24, 18 and 4, said terms of imprisonment to be concurrent with each other; B. For a period of 5 years on each of Counts 30, 14, 38 and 12, and 2" }, { "docid": "6006755", "title": "", "text": "Sancinella took timely exception to this omission. ***9 On the other hand, it is also not disputed that the charge adequately informed the jury as to the knowledge of illegal importation required for the substantive crime and that the trial court did charge that the jury must find that each defendant “wilfully and knowingly joined a conspiracy to violate that substantive law relating to the sale of nar coties.” Cf. United States v. Agueci, 310 F.2d 817, 824-826 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L. Ed.2d 11 (1963); United States v. Bentvena, 319 F.2d 916, 938-940 (2d Cir.), cert, denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). Furthermore, in launching into his discussion of the substantive aspects of the offenses charged, the trial court stated, In order to find a defendant guilty of the crimes charged in either or both counts 1 and 2 in the indictment, you must be convinced beyond a reasonable doubt with respect to each of the first two counts and with respect to each of the following four elements: ****** The third element that must be proven beyond a reasonable doubt is that the narcotic drugs were illegally imported into the United States; and, fourth, and this, too, must be proven beyond a reasonable doubt, that each defendant knew that these narcotic drugs had been illegally imported into the United States. (Emphasis supplied.) Although these statements do not take the place of an explicit treatment of the knowledge of illegal importation required for conviction on the conspiracy count, so far as these defendants were concerned any defect in the charge as to this element was cured by the jury’s finding of the guilt of all appellants of both the substantive offense and the conspiracy. Since the instruction as to knowledge of illegal importation with respect to the substantive offense was more than sufficient, and since the jury found all appellants guilty of the substantive offense, they must have found that each of them had the requisite knowledge of illegal importation or such possession of the narcotics" }, { "docid": "15028870", "title": "", "text": "v. Beasley, 476 F.2d 164, 166 (9th Cir.), cert. den., 414 U.S. 839, 94 S.Ct. 92, 38 L.Ed.2d 76 (1973), and United States v. Gordon, 455 F.2d 398, 402 (8th Cir.), cert. den., 406 U.S. 970, 92 S.Ct. 2428, 32 L.Ed.2d 670 (1972). II. Defendant Miller raises one other issue which should be discussed. Miller contends that since he was acquitted of the four substantive counts of importation and possession of marijuana, this requires that he be acquitted of the conspiracy charge as well. He reasons that when the jury acquitted him on the substantive charges they “negatived” all of the evidence presented by Stutler that could be used to convict him of the conspiracy charge. We disagree. It has long been recognized that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). It is also the general rule in the federal courts that consistency between the several counts of the indictment is not necessary where a defendant is convicted upon one or some of the counts, but acquitted on another, and that the conviction will be sustained, even though rationally incompatible with the acquittal. United States v. Livengood, 427 F.2d 420, 423 (9th Cir. 1970), citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Thus, we find that Miller’s acquittal of the four substantive counts does not require acquittal of the conspiracy count. If this were the only issue on appeal, we would affirm the conviction. However, due to the error committed by the trial judge regarding the jury instructions, we reverse and remand this case for further proceedings in the district court. In view of this disposition, we do not consider other assignments of error. REVERSED and REMANDED. . Stutler’s credibility was impeached by some contradiction between his trial testimony and that given before the indicting grand jury. R.T. 312, et seq. Further attack on Stutler’s credi bility occurred when he was cross-examined as to the contents of a" }, { "docid": "15028869", "title": "", "text": "to the jury. This is especially true when the jury indicates to the court that they are unsure as to the exact instructions that were given on credibility. See United States v. Bolden, 169 U.S.App.D.C. 60, 514 F.2d 1301, 1303 (1975). Even assuming it is the federal rule that a defendant can be convicted on the uncorroborated testimony of an accomplice, a' point concerning which there may be serious doubt, see United States v. Hibler, 463 F.2d 455 (9th Cir. 1972), we believe that there was reversible error in failing to further instruct the jury specifically in this sensitive area of credibility. We are not suggesting that in every case where the trial judge fails or refuses to give complete reinstruction, there is reversible error. We base this decision solely on the facts and evidence in this particular case. As a general rule, the necessity, extent and character of additional instructions are matters within the sound discretion of the trial judge. Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970). See United States v. Beasley, 476 F.2d 164, 166 (9th Cir.), cert. den., 414 U.S. 839, 94 S.Ct. 92, 38 L.Ed.2d 76 (1973), and United States v. Gordon, 455 F.2d 398, 402 (8th Cir.), cert. den., 406 U.S. 970, 92 S.Ct. 2428, 32 L.Ed.2d 670 (1972). II. Defendant Miller raises one other issue which should be discussed. Miller contends that since he was acquitted of the four substantive counts of importation and possession of marijuana, this requires that he be acquitted of the conspiracy charge as well. He reasons that when the jury acquitted him on the substantive charges they “negatived” all of the evidence presented by Stutler that could be used to convict him of the conspiracy charge. We disagree. It has long been recognized that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). It is also the general rule in the federal courts that consistency between the several counts of the indictment" }, { "docid": "14572596", "title": "", "text": "objects of the conspiracy in the indictment were independent. The language in the indictment concerning the conspiracy to make false statements did not focus on an alleged drug status of PTS. The word “drug” never appeared in the 39 false statement substantive counts. The defendants have failed to show that the withdrawal of portions of the conspiracy count had any effect upon the substantive false statement counts on which they were convicted. These counts do not mention PTS at all and allege that defendants made false statements by representing that “certain individuals had donated their plasma on certain dates at the [Miami] facilities ..., whereas in truth and fact, as they well knew, such individuals had not .... ” The Government’s decision not to pursue the FDC Act violations did not affect the remaining issues facing defendants. Neither Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), nor Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the two cases principally relied on by defendants, are applicable to this situation. The focus of defendants’ argument on this point involves the trial judge’s instructions. But the offenses charged simply had to do with the intentional making of false records, and the court committed no reversible error in instructing the'jury in accordance with the remaining counts of the indictment that went to trial. Jury Instructions Defendants argue that the district court expanded the scope of the indictment by instructing the jury that one basis for finding the false statements within FDA’s jurisdiction was the agency’s source plasma (human) regulations. They assert that this somehow transformed the case from a “PTS conspiracy” to a “source plasma (human) conspiracy.” They point out that the indictment does not mention source plasma (human). The shifting of this case from a “PTS conspiracy” to a “source plasma (human)” allowed conviction on a theory of criminal liability not charged in the indictment, according to defendants. The indictment, however, did not allege a “PTS conspiracy” or a “source plasma (human) conspiracy,” as defendants believe. It charged defendants with a conspiracy" }, { "docid": "22927581", "title": "", "text": "Loan Account” and “Accommodation Account”) belonged to Colonial or to Washington Heights — ■ whether in the instances set forth funds were expended by Colonial at the direction of Washington Heights for which reimbursement was later made by the bank. Certainly the answers provided by appellants had the effect of impeding the Grand Jury in pursuing that avenue of inquiry, and there is no doubt that the questions were pertinent to the Grand Jury investigations. Materiality, however, is not one of the essential elements of proof in a prosecution for false statements under § 1001, with the exception of the first clause of the statute which is not involved here. In United States v. Silver, 235 F.2d 375, 377 (2 Cir.), cert. den. 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 80 (1956), we expressly rejected the position taken by several other circuits that in every case proof of materiality is a requisite to a § 1001 conviction, and we subsequently have adhered to that viewpoint. United States v. McCue, supra. Cf. United States v. Sorkin, 275 F.2d 330, 331 (2 Cir. 1960). Thus, the elements of the § 1001 offense are simply four: (1) a statement; (2) falsity; (3) that the false statement be made “knowingly and wilfully”; and (4) that the false statement be made in a “matter within the jurisdiction of any department or agency of the United States.” United States v. McCue, supra, 301 F.2d at 454. C. The Conspiracy Counts The court imposed sentences concurrently on all counts, and since we have found the convictions to be sustainable on the substantive counts, we would normally not reach the questions raised by appellants concerning their conspiracy convictions. However, the conspiracy issue occupied an important and integral part of the case and for this reason warrants some discussion, especially in view of our decision in United States v. Agueci, 310 F.2d 817, 99 A.L.R.2d 478 (2 Cir. 1962), cert. den. 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963). This court recognized in Agueci that in a mass conspiracy trial, where a number of defendants are" }, { "docid": "6006754", "title": "", "text": "other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). At any rate, we do not consider that it was such “plain error” as to justify reversal of the convictions in the absence of exception below. See Fed.R.Crim.P. 30, 52 (b). The next error assigned by Baratta is a more serious one. In United States v. Massiah, supra 307 F.2d at 69-71, a majority of the court held that failure to instruct the jury that knowledge of illegal importation is an essential element of a section 174 conspiracy was plain error, see Fed.R.Crim.P. 52 (b), requiring reversal even without timely exception by the defendant. As the court there said, “In a criminal case, the defendant is entitled to have the jury instructed on all the elements that must be proved to establish the crime charged.” 307 F.2d at 71. In the present case it is conceded that the trial court did not specifically instruct as to the requirement of knowledge of illegal importation on the conspiracy count, and that counsel for Monastersky and Sancinella took timely exception to this omission. ***9 On the other hand, it is also not disputed that the charge adequately informed the jury as to the knowledge of illegal importation required for the substantive crime and that the trial court did charge that the jury must find that each defendant “wilfully and knowingly joined a conspiracy to violate that substantive law relating to the sale of nar coties.” Cf. United States v. Agueci, 310 F.2d 817, 824-826 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L. Ed.2d 11 (1963); United States v. Bentvena, 319 F.2d 916, 938-940 (2d Cir.), cert, denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). Furthermore, in launching into his discussion of the substantive aspects of the offenses charged, the trial court stated, In order to find a defendant guilty of the crimes charged in either or both counts 1 and 2 in the indictment, you must be convinced beyond a reasonable doubt with respect to each of the first two counts and with" }, { "docid": "21363723", "title": "", "text": "they were members of the conspiracy at the time of the withdrawals and the withdrawals were in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 643-648, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Finally, failure to note any objection precludes assigning as error the claim here that the trial court’s failure to instruct the jury that a co-conspirator’s acts and declarations, made in furtherance of the conspiracy, may ser”e as evidence against his co-defendants only with respect to the conspiracy count. In any event, we recently held, in United States v. Accardi, 342 F.2d 697, 700 (2 Cir. 1965), that such statements may properly be considered against a co-defendant on the substantive counts once the jury finds, by independent proof, that a conspiracy existed in which the defendant was a member and that his statements were made during and in furtherance of the conspiracy. In reviewing a similarly complex multi-defendant conspiracy case we commented that “[i]n a trial of this dimension, each juror is faced with a difficult task in compartmentalizing the evidence with regard to each particular defendant and keeping clearly in mind the full circumstances of each transaction.” United States v. Agueci, 310 F.2d 817, 829, 99 A.L.R.2d 478 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). Here, as there, the trial judge “patiently and capably” discharged the “burden of impressing upon the jury the need for judging each defendant separately” so that “justice [might] be meted out to the individual rather than to the group.” Ibid. Appellants’ other allegations have been considered and rejected, and are too insubstantial to warrant discussion. The judgments of conviction as to all of the defendants are hereby affirmed. . The sentences were as follows: Castellana — 5 years on each count, to run concurrently; $10,000 fine on conspiracy count; $5,000 fine on each substantive count; defendant to stand committed until total fine is paid or he is otherwise discharged by law. Newman — 15" }, { "docid": "22927583", "title": "", "text": "charged with substantive offenses as well as with complicity in the conspiracy, the danger exists that the jury will consider evidence relating to other defendants and to other transactions in which the particular defendant was not involved in determining the defendant’s participation in the conspiracy or defendant’s guilt on the substantive counts. To avoid possible prejudice, this court strongly recommended that the trial court make the jury constantly aware of the fact that there are separate individuals on trial and that each must be judged solely on the evidence properly admissible against him. “It is the function of the judge * * * to marshal the evidence that they [the jury] have seen and heard presented such that justice may be meted out to the individual rather than to the group.” 310 F.2d at 829. Judge Herlands fully appreciated our admonitions. During the course of the trial and in his charge, he instructed the jury that there were separate defendants on trial and that the evidence proffered must be segregated and related to the appropriate defendant, and he assisted the jury in marshalling the evidence, by directing their attention to the evidence of each defendant’s own actions and conversations subsequent to 1955 when discussing the proof against that defendant on the conspiracy counts. Proof of Appellants’ Membership in the Conspiracies. The conspiracy counts charged generally that Marchisio, from April 1957, and Whipple and Seiter, beginning in October 1960, conspired among themselves and with the other defendants to commit perjury before the grand juries, to make false statements to the Federal Home Loan Bank Board, and, in Marchisio’s case, also to make false statements to the Internal Revenue Service. The proof was more than sufficient to establish the alleged conspiracies and to connect appellants with them. Although the evidence was largely circumstantial, it had as much probative value as direct evidence in proving the conspiracy, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1952), and it has been held that once the existence of the conspiracy was clearly proven, each defendant’s connection may be shown" }, { "docid": "22927582", "title": "", "text": "Sorkin, 275 F.2d 330, 331 (2 Cir. 1960). Thus, the elements of the § 1001 offense are simply four: (1) a statement; (2) falsity; (3) that the false statement be made “knowingly and wilfully”; and (4) that the false statement be made in a “matter within the jurisdiction of any department or agency of the United States.” United States v. McCue, supra, 301 F.2d at 454. C. The Conspiracy Counts The court imposed sentences concurrently on all counts, and since we have found the convictions to be sustainable on the substantive counts, we would normally not reach the questions raised by appellants concerning their conspiracy convictions. However, the conspiracy issue occupied an important and integral part of the case and for this reason warrants some discussion, especially in view of our decision in United States v. Agueci, 310 F.2d 817, 99 A.L.R.2d 478 (2 Cir. 1962), cert. den. 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963). This court recognized in Agueci that in a mass conspiracy trial, where a number of defendants are charged with substantive offenses as well as with complicity in the conspiracy, the danger exists that the jury will consider evidence relating to other defendants and to other transactions in which the particular defendant was not involved in determining the defendant’s participation in the conspiracy or defendant’s guilt on the substantive counts. To avoid possible prejudice, this court strongly recommended that the trial court make the jury constantly aware of the fact that there are separate individuals on trial and that each must be judged solely on the evidence properly admissible against him. “It is the function of the judge * * * to marshal the evidence that they [the jury] have seen and heard presented such that justice may be meted out to the individual rather than to the group.” 310 F.2d at 829. Judge Herlands fully appreciated our admonitions. During the course of the trial and in his charge, he instructed the jury that there were separate defendants on trial and that the evidence proffered must be segregated and related to the appropriate" }, { "docid": "21363724", "title": "", "text": "“[i]n a trial of this dimension, each juror is faced with a difficult task in compartmentalizing the evidence with regard to each particular defendant and keeping clearly in mind the full circumstances of each transaction.” United States v. Agueci, 310 F.2d 817, 829, 99 A.L.R.2d 478 (2 Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). Here, as there, the trial judge “patiently and capably” discharged the “burden of impressing upon the jury the need for judging each defendant separately” so that “justice [might] be meted out to the individual rather than to the group.” Ibid. Appellants’ other allegations have been considered and rejected, and are too insubstantial to warrant discussion. The judgments of conviction as to all of the defendants are hereby affirmed. . The sentences were as follows: Castellana — 5 years on each count, to run concurrently; $10,000 fine on conspiracy count; $5,000 fine on each substantive count; defendant to stand committed until total fine is paid or he is otherwise discharged by law. Newman — 15 months on each count, to run concurrently. Joseph Weinberg — 1 year on each count, to run concurrently. Stanley Weinberg — 1 year on each count, to run concurrently. Gondolfo Sciandra — 18 months on each count, to run concurrently. Pagano — 5 years on each count, to run concurrently; $10,000 fine on conspiracy count; $5,000 fine on each substantive count; defendant to stand committed until total fine is paid or he is otherwise discharged by law. Pride Wholesale Meat & Poultry Corp. —$10,000 fine. . The Government’s proof established that Pride’s March purchases from Murray almost doubled those for February. The jury could reasonably reject Castellana’s claim that this increase was traceable to the Easter-Passover season, for it was shown that during the same seasons in 1960 and 1962 Pride’s purchases actually declined when compared with the preceding months. Moreover, in November 1960 Murray sold to Pride only about $1,000 of its approximate $258,000 total sales and for December 1960 sales to Pride amounted to about $139,000 of a gross volume of about $340,000." }, { "docid": "12307153", "title": "", "text": "the eight separate submissions of invoices. Each count charged the particular submission constituted a violation of 18 U.S.C. § 1014 (making false statements to a federally insured institution for purposes of influencing action on loans or extensions of them and 18 U.S.C. § 2 (aiding and abetting). The remaining count charged defendants with conspiracy in violation of 18 U.S.C. § 371 and identified the eight submissions as overt acts. Defendant Bailey testified that all expenses charged to the bank loan by him, by Monarch, RPM or Smith were directly related to the Knoll-wood project as direct costs, expenses or service fees. IV R. 161-201; V R. 3-90. A jury convicted defendants on the conspiracy count and five of the false statement counts. Defendant Smith was sentenced to four years’ imprisonment on the conspiracy conviction, to be served consecutively with another sentence he was already serving. Defendant Bailey was sentenced to three years’ imprisonment on the conspiracy conviction. Both defendants received suspended sentences on the five substantive convictions and were placed on five years’ probation to commence upon release from confinement. II Defendants contend the evidence was insufficient to support the charges for which they were convicted. The indictment’s substantive counts alleged that the eight submitted invoices were for amounts “intended for [defendants’] personal use unrelated to said project.” (emphasis added). E.g. I R. Item 1, at p. 4. Defendants contend the United States failed to introduce any evidence the amounts were for personal use and were unrelated to the Knollwood project. We find this argument unpersuasive. A criminal defendant can only be tried on an indictment as found by a grand jury, and especially upon all language found in the charging part of that instrument. United States v. Conlon, 661 F.2d 235, 238 (D.C.Cir.1981), cert. denied, 454 U.S. 1149, 102 S.Ct. 1015, 71 L.Ed.2d 304 (1982). An indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet. United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985)." }, { "docid": "17612796", "title": "", "text": "offenses, and overt acts will, if shown to be substantially distinct, support separate conspiracy prosecutions. Arnold v. United States, 336 F.2d 347, 348-49 (9th Cir. 1964), cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14 L.Ed.2d 275 (1965). The Government has made such a showing here. We note that determining whether to indict for a single conspiracy or for separate ones requires the Government to make delicate judgments. When separate trials are sought on the theory that there are multiple conspiracies involving disparate individuals with some interrelationships, charges of bad faith multiplicity or pleas of double jeopardy are likely to be raised on appeal. On the other hand, the Supreme Court, and the lower federal courts, have disapproved the practice of trying different offenses involving a number of defendants at one trial. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Sperling, 506 F.2d 1323, 1340-41 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). No bad faith .or harassment by the Government was demonstrated here. Further, we are of the opinion that the Government accurately classified the facts in concluding that there were two conspiracies. The district court correctly rejected the defendant’s motions based on double jeopardy. Appellant raises objections to the introduction of certain evidence. Our examination of the transcript reveals that these contentions are without merit. Admission of the evidence, on this record, was within the discretion of the trial court. In any case, the balance of the evidence supports appellant’s conviction and any claimed error would have been harmless. Appellant also challenges his conviction on the substantive count, for aiding and abetting his son, James Ingman, in the sale of heroin. We note, however, that appellant’s sentence on the substantive count was ordered to run concurrently with his sentence on the conspiracy count. Since we have determined that appellant’s conviction under the conspiracy count must be affirmed, under the concurrent sentence rule we need not consider his objection to the substantive count. United States v. Meeker, 527 F.2d 12, 14 (9th" }, { "docid": "15778655", "title": "", "text": "pled guilty before trial. William Becker was charged in all counts but the twelfth, had counts one through five dismissed (including the conspiracy count) and was convicted of six substantive counts. Charles Procacci was tried and convicted of four substantive offenses and the count for conspiracy. They both filed notices of appeal to this court. We will again not discuss the facts except as they relate to the issues raised by appellants. A. William Becker Defendant Becker raises two issues in this case. The first is that a severance from Procacci’s trial was required to preserve his right to a fair trial by preventing substantial prejudice. The second issue is whether the trial court committed plain error when it permitted testimony from government witness Brewer without instructing the jury that the admissibility of the testimony was dependent upon a finding of fact to be made by the jury. Becker claims he was entitled to a severance because the evidence which established his participation with Procacci in a conspiracy to transport and sell stolen automobiles confused the jurors and created a danger of guilt by association because the conspiracy charge had been dismissed as to Becker and because he and Procacci presented antagonistic defenses. Becker has again failed to show this court the “compelling prejudice” which would require reversal of his conviction. United States v. Scallion, 533 F.2d 903, 913 (5th Cir. 1976); United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Granting a severance is within the discretion of the trial court and we find no clear showing by Becker of abuse of that discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed.2d 101 (1954). In particular Becker contends the court erred in not granting a severance where, in a separate trial on only the substantive counts against him, declarations attributed to his co-defendant Procacci which supported the existence of a conspiracy would not have been admissible against him. The Fifth Circuit has held that: the admissions and statements of a" }, { "docid": "12307162", "title": "", "text": "that defendants aided and abetted each other in committing the offense. The effect of the guilty verdict on each count was not to have two separate convictions. The convictions of the defendants are AFFIRMED. . A variance between an indictment and the proof may be disregarded if it does not affect an essential element of the offense so as to impair substantial rights of the defendant. United States v. Nunez, 668 F.2d 1116, 1127 (10th Cir.1981); United States v. Francisco, 575 F.2d 815, 818-19 (10th Cir.1978); see also United States v. Hansen, 701 F.2d 1215, 1221 (7th Cir.1983). . Mortgensen's testimony was based on his examination of the prosecution’s exhibits consisting of the invoice submissions, disbursement records, deposit slips, checks, etc. These exhibits were transmitted to this court as pent of a supplemental record under Fed.R.App.P. 10(e). . We recognize that defendants frequently submitted invoices that contained both true and false statements, some fairly revealing that legal or other expenses were included. On other occasions, defendants submitted both true and false invoices on the same date. Defendants might have made true and false statements simultaneously; however, the making of a false statement, together with other required proof, would support a conviction under § 1014. Our holding in United States v. Irwin, 654 F.2d 671 (10th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982), does not affect this conclusion. In Irwin, various counts in the indictment alleged defendants committed substantive offenses, and another count alleged they conspired to commit offenses against the United States, these offenses being the same as those alleged in the substantive counts. We reversed some of the substantive convictions and then reversed the conspiracy conviction because we could not determine \"whether the jury based its conspiracy verdict on a conspiracy to commit those very offenses [that we reversed].” Id. at 680. Here, we examine each conviction, viewing all the evidence together with all reasonable inferences therefrom in the light most favorable to the government. Id. at 673. We do not reverse the convictions since there is evidence to support the convictions under" }, { "docid": "23250129", "title": "", "text": "reasonable doubt. See United States v. Blunk, 561 F.2d 111, 116 (8th Cir.1977). 2. False Statements in Invoices — Counts 1 through 6 In accordance with well established conspiracy law, the trial court instructed the jury that if they found a defendant guilty of a conspiracy they could also find that defendant guilty of a substantive crime which was committed by his coconspirators pursuant to the conspiracy at the time the defendant was a member of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946); United States v. Cox, supra, 580 F.2d at 324. In light of the dearth of evidence directly implicating appellants Rodney Richmond and Lloyde Richmond, Jr. in the false statement violations charged in counts 1 through 6, it is apparent that the jury’s guilty determination relating to Rodney and Lloyde on these counts was based upon the conspiracy verdict on count eleven. In view of our holding that there was insufficient evidence to sustain the conspiracy convictions, and because even when the evidence relating to the false statements in invoices is viewed in the light most favorable to the government there is not substantial evidence to support the jury’s finding of guilt as to Rodney Richmond and Lloyde Richmond, Jr., see Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. at 469, we must reverse their convictions on counts 1 through 6. However, we cannot reach the same conclusion with regard to appellant Elwood Richmond. It is essentially undisputed that Elwood Richmond was primarily responsible for preparing billing summaries involved in counts 1 through 6, and that discrepancies existed between those summaries (and the invoices prepared from those summaries) and the timecards from which they were prepared. The focal point of controversy was whether statements in the invoices were intentionally false, e.g., whether they were made “knowingly and willfully.” 18 U.S.C. § 1001. The government produced the testimony of Donald Bloyer, the government’s auditor who investigated Richmond Engineering, Inc. Essentially, Bloyer testified that he audited the Richmond’s billing system by employing a claim audit" }, { "docid": "23250128", "title": "", "text": "billing summaries involved in counts 1 through 6, there was no evidence that Lloyde Richmond, Jr. or Rodney Richmond participated in those false statements, were significantly involved in the firm’s billing process, or were aware of any discrepancies occurring in that process. Cf. United States v. Pin-tar, supra, 630 F.2d at 1276 (no evidence of actual involvement in or agreement to illegal object of conspiracy); United States v. Wrehe, supra, 628 F.2d at 1082-85 (same). In fact, the evidence generally established that each of the appellants were principally involved with a separate aspect of the business and that there was very little overlap in their activities or responsibilities. We are convinced that, even when the government is given the benefit of all reasonable inferences to be drawn from the facts, including the conduct of the appellants and the attending circumstances, the evidence in this case raises no more than a mere suspicion or possibility of a conspiracy. Such evidence is simply insufficient to establish the existence of a conspiracy or appellants’ participation therein beyond a reasonable doubt. See United States v. Blunk, 561 F.2d 111, 116 (8th Cir.1977). 2. False Statements in Invoices — Counts 1 through 6 In accordance with well established conspiracy law, the trial court instructed the jury that if they found a defendant guilty of a conspiracy they could also find that defendant guilty of a substantive crime which was committed by his coconspirators pursuant to the conspiracy at the time the defendant was a member of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946); United States v. Cox, supra, 580 F.2d at 324. In light of the dearth of evidence directly implicating appellants Rodney Richmond and Lloyde Richmond, Jr. in the false statement violations charged in counts 1 through 6, it is apparent that the jury’s guilty determination relating to Rodney and Lloyde on these counts was based upon the conspiracy verdict on count eleven. In view of our holding that there was insufficient evidence to sustain the conspiracy convictions, and because even when" }, { "docid": "1507068", "title": "", "text": "but [also] assault “by use of a deadly and dangerous weapon, to wit, a revolver.” In finding the defendants guilty of that charge, the jury necessarily found all the facts required for a conviction on the third count. It is thus immaterial that the jury may have considered the felony charged in Count Two also to have been a predicate. 517 F.2d at 965 (citations and footnote omitted). Similarly, in United States v. Baratta, 397 F.2d 215 (2d Cir.), cert. denied, 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968), the defendants, appealing their convictions on both the substantive crime of narcotics importation and conspiracy to import narcotics, alleged that the trial court failed to instruct the jury that knowledge of illegal importation is an essential element of a conspiracy. The Second Circuit stated that [i]n the present case it is conceded that the trial court did not specifically instruct as to the requirement of knowledge of illegal importation on the conspiracy count.... On the other hand, it is also not disputed that the charge adequately informed the jury as to the knowledge of illegal importation required for the substantive crime and that the trial court did charge that the jury must find that each defendant “willfully and knowingly joined a conspiracy to violate that substantive law relating to the sale of narcotics.” Furthermore, in launching into his discussion of the substantive aspects of the offenses charged, the trial court stated: The third element that must be proven beyond a reasonable doubt is that the narcotic drugs were illegally imported into the United States; and, fourth, and this, too, must be proven beyond a reasonable doubt, that each defendant knew that these narcotic drugs had been illegally imported into the United States.... Although these statements do not take the place of an explicit treatment of the knowledge of illegal importation required for conviction on the conspiracy count, so far as these defendants were concerned any defect in the charge as to this element was cured by the jury’s finding of the guilt of all appellants of both the substantive" } ]

[ { "docid": "18585114", "title": "", "text": "of an opposing party for the filing of frivolous appeals or pleadings. As a consequence of the injunction, virtually all of Martin-Trigona’s frivolous motions are unopposed before us, and thus these rules may not apply. However, our power to defend our ability to carry out our constitutional functions in no way depends upon the rights of private parties to relief. 737 F.2d at 1261. No litigant has the right to monopolize judicial resources and thus indirectly to obstruct other litigants asserting good faith claims. Absent the power to deter tactics like those employed by Martin-Trigona, a small number of litigants could paralyze this court. Our role here is thus not that of a dispute settler but that of an independent branch of government protecting its jurisdiction. Id. at 1261. In future cases, therefore, we will impose monetary sanctions on Martin-Trigona if he files frivolous papers or proceedings. Once such a sanction is levied, the clerk shall accept no further papers from Martin-Trigona, who does not have in forma pau-peris status in this court, until that monetary obligation is satisfied. See, e.g., Johl v. Johl, 788 F.2d 75 (2d Cir.1986) (per curiam); Schiff v. Simon & Schuster, Inc., 766 F.2d 61, 62 (2d Cir.1985) (per curiam). This is the only way to make the sanction effective and protect the processes of this court from abuse. Schiff, 766 F.2d at 62. Martin-Trigona has pointed out that the injunction in this court has never been made permanent. We now order that this be done. Motions denied. Permanent injunction is to be entered. It is so Ordered. . The injunction does not apply to judgments rendered against Martin-Trigona as a defendant, or those adjudicating him in contempt. 737 F.2d at 1264." } ]

[ { "docid": "22629908", "title": "", "text": "to 28 U.S.C. § 1291 and may affirm the District Court’s judgment on any basis supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Because this appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. Murray argues that the Ninth Amendment “protects rights that are ‘fundamental,]’ ” such as “rights to marry; to raise a family; the right to an abortion[,]” and the right to choose one’s cellmate. Although there is some authority for the proposition that the Ninth Amendment is a source of fundamental rights, see Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring), no court of which we are aware has held that the Ninth Amendment establishes a right to choose one’s cellmate. To the contrary, those courts confronted with the question of whether inmates have a constitutional right to choose a cellmate have held that no such right exists. See Harris v. Greer, 750 F.2d 617, 618 (7th Cir.1984); see also Cole v. Benson, 760 F.2d 226, 227 (8th Cir.1985) (per curiam) (inmate has no Eighth Amendment right to be placed in a particular cell). Accordingly, the District Court properly denied this claim. In his brief in opposition to summary action, Murray advises that, since the time he filed his petition in the District Court, he has been placed with a desirable cellmate. He still wishes to proceed with the appeal, however, in order to challenge the broader BOP policy disallowing prisoners to choose their cellmates. Murray did not raise this broader challenge in the District Court; therefore, it is waived on appeal. Because this appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. Murray’s request for appointment of counsel, request to take judicial notice, and motion to amend deficient judicial statements will be denied. . Murray styled his petition as a challenge to the BOP’s decision under the Administrative Procedure Act (\"APA”). BOP decisions about where to house inmates, however, are" }, { "docid": "2257112", "title": "", "text": "a Rule 60(b) motion, a substantial showing that the district court abused its discretion indicates that the appeal has the threshold quantum of merit to go forward. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998), cert. denied, 526 U.S. 1146, 119 S.Ct. 2022, 143 L.Ed.2d 1033 (1999) (holding that the standard of review of a district court order granting or denying a Rule 60(b) motion is whether the order constituted an abuse of discretion). Accordingly, we hold, following the Supreme Court’s formulation in Slack, 529 U.S. at 484, 120 S.Ct. 1595, that a COA should issue only if the petitioner shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional right. See also Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir.1993) (holding that a CPC should issue only if petitioner makes a substantial showing that the district court has abused its discretion by denying the Rule 60(b) motion); Lindsey v. Thigpen, 875 F.2d 1509, 1512 (11th Cir.1989) (same). Kellogg has failed to demonstrate that a reasoned jurist would find debatable whether the District Court abused its discretion. A Rule 60(b) motion must be made within one year or within a “reasonable time.” Fed.R.Civ.P. 60(b). Kellogg’s motion was made twenty-six months after the entry of the final judgment, a period of time which constitutes a patently unreasonable delay absent mitigating circumstances. See, e.g., Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir.1995) (Rule 60(b) motion made eighteen months after judgment was not made within a reasonable time). Kellogg’s bare assertions that the conditions of his confinement prevented him from filing his motion earlier are insufficient to excuse the delay. See Jones v. Phipps, 39 F.3d 158, 163-64 (7th Cir.1994) (enduring ordinary hardships of incarceration does not excuse failure to respond within a reasonable time). As" }, { "docid": "21090234", "title": "", "text": "party opponent which related to the case. C. McCready’s Abuse of Process McCready has abused the judicial process with frivolous litigation. The result has been the harassment of opposing parties, insult to judicial officers, and waste of limited and valuable judicial resources. Not only have McCready’s actions on eBay resulted in the filing of five frivolous lawsuits, but our review of the dockets of the district courts in this circuit reveal McCready has engaged in a pattern of similar behavior against other innocent defendants. In exercising our inherent power, we do so in a way that is tailored to the abuse. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Support Sys., Int'l v. Mack, 45 F.3d 185, 186 (7th Cir.1995) (per curiam) (citations omitted). When dealing with a frivolous litigator who, despite due warning or the imposition of sanctions, continues to waste judicial resources, we impose a filing bar preventing the litigant from filing in this court or any federal court in this circuit. See Mack, 45 F.3d at 186. Usually such an order is tied to a monetary incentive — such as the payment of outstanding filing fees, the imposition of a fine, or both. See, e.g., Montgomery v. Davis, 362 F.3d 956 (7th Cir.2004). But the satisfaction of an outstanding monetary obligation to this court will not necessarily cause the bar to be lifted when a minimum time period is imposed. See Mack, 45 F.3d at 186 (allowing petition for reinstatement to be filed after two years from entry of order). McCready is hereby ordered to show cause within 30 days why he should not be required to pay $2,500 to this court’s clerk. Should McCready fail to respond or merely attempt to reargue his case, then the $2,500 sanction will be imposed and McCready will be barred from filing, with appropriate exceptions, any paper in all federal courts in this circuit for no less than two years. III. CONCLUSION For the foregoing reasons, the district courts were correct to grant the defendants’ motions to dismiss, and their judgments are Affirmed." }, { "docid": "20647227", "title": "", "text": "an Article III and a statutory requirement, the requirement of personal jurisdiction flows from the Due Process Clause and protects an individual liberty interest. “The requirement that a court have personal jurisdiction is a due process right that may be waived either explicitly or implicitly. ‘The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.’ ” Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998) (quoting Bauxites, 456 U.S. at 703-05, 102 S.Ct. 2099). Accord McBee v. Delica Co., Ltd., 417 F.3d 107, 127 (1st Cir.2005) (“Unlike subject matter jurisdiction under Article III, which goes to the fundamental institutional competence of the court and can be raised sua sponte at any time, personal jurisdiction is an individual liberty right and is therefore waivable ....”) (citing Bauxites, 456 U.S. at 702-05, 102 S.Ct. 2099). Appellant waived his personal-jurisdiction and due-process objections by waiting almost a year before moving to vacate. “[W]aiver is the intentional relinquishment or abandonment of a known right.” United States v. Osborne, 402 F.3d 626, 630 (6th Cir.2005). See also United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In this case, by virtue of the second service, which counsel for appellant admitted was valid at oral argument, and which included both the complaint and the motion for a default judgment, appellant knew of his right to respond to both the complaint and the motion for a default judgment within the time allowed by the rules and by virtue of the summons included with the complaint. By choosing not to respond, to either the complaint or the motion for default judgment, when he was aware of his right to respond, appellant intentionally abandoned his right to respond. Thus, he waived his rights to respond to both the complaint and the motion for default judgment in this case. III. Following our review, we hold that the district court did not abuse its discretion in ruling that appellant did not file his motion within a reasonable time. Federal Rule" }, { "docid": "22808545", "title": "", "text": "obtained. They have submitted to the Clerk of the Court inquiries that challenge the procedures for determining whether such leave should be given. Treating these inquiries as motions, we conclude that proper procedures have been followed and deny the motions. Because the precise issues raised have not previously been discussed in the opinions of this Court, however, we deem it appropriate to set forth our views in a published opinion. Background As a result of an extraordinary pattern of vexatious and harassing litigation pursued over several years by Martin and Sassower as pro se litigants, each was enjoined by this Court from filing any papers in this Court unless leave of court was first obtained. See In re Martin-Trigona, 737 F.2d 1254, 1263-64 (2d Cir.1984) (preliminary injunction), injunction made permanent, 795 F.2d 9, 12 (2d Cir.1986), modified sub nom. Martin-Trigona v. Cohen, 876 F.2d 307, 308 (2d Cir.1989); Sassower v. Sansverie, 885 F.2d 9, 11 (2d Cir.1989) (warning of injunction); Sassower v. Mahoney, No. 88-6203 (2d Cir. Dec. 3, 1990) (permanent injunction). Thereafter, the Court determined the procedure that would be followed for considering applications for leave to file pursuant to these and all other injunctions imposing “leave to file” requirements. The procedure has several components: (1) all applications of any sanctioned litigant who is subject to a “leave to file” requirement are submitted for decision by one judge of this Court; (2) a particular judge is assigned to consider all the applications submitted by any one sanctioned litigant; (3) the judge to whom applications from a particular sanctioned litigant are assigned is selected by a procedure related to the seniority of the judges, further details of which will not be disclosed for reasons set forth in this opinion; and (4) the ruling of the assigned judge granting or denying leave to file is entered by the Clerk as an order of the Court, without disclosure of the identity of the judge who made the ruling. Martin’s application. On March 1, 1993, Martin filed a motion for leave to appeal a ruling of the District Court for the District of" }, { "docid": "22808544", "title": "", "text": "JON 0. NEWMAN, Chief Judge: The unfortunate tendency of some individuals to abuse the litigation process has prompted courts to adopt a variety of techniques to protect both themselves and the public from the harassing tactics of vexatious litigants. Usually these techniques are rules of general application, such as Rule 11 of the Federal Rules of Civil Procedure, authorizing sanctions for groundless lawsuits, and Rule 38 of the Federal Rules of Appellate Procedure, authorizing damages for taking a frivolous appeal. Occasionally, however, the tactics of certain individuals so far exceed the bounds of tolerable litigation conduct that courts have responded with specially crafted sanctions that impose severe limitations on the opportunity of such individuals to pursue their penchant for vexatious litigation. In two unrelated matters initiated by two such sanctioned litigants, Anthony R. Martin (formerly known as Anthony R. Martin-Tri-gona) and George Sassower, we consider various procedural issues that arise from the imposition of such sanctions. Both litigants have been prohibited from filing any papers in this Court unless leave of court has first been obtained. They have submitted to the Clerk of the Court inquiries that challenge the procedures for determining whether such leave should be given. Treating these inquiries as motions, we conclude that proper procedures have been followed and deny the motions. Because the precise issues raised have not previously been discussed in the opinions of this Court, however, we deem it appropriate to set forth our views in a published opinion. Background As a result of an extraordinary pattern of vexatious and harassing litigation pursued over several years by Martin and Sassower as pro se litigants, each was enjoined by this Court from filing any papers in this Court unless leave of court was first obtained. See In re Martin-Trigona, 737 F.2d 1254, 1263-64 (2d Cir.1984) (preliminary injunction), injunction made permanent, 795 F.2d 9, 12 (2d Cir.1986), modified sub nom. Martin-Trigona v. Cohen, 876 F.2d 307, 308 (2d Cir.1989); Sassower v. Sansverie, 885 F.2d 9, 11 (2d Cir.1989) (warning of injunction); Sassower v. Mahoney, No. 88-6203 (2d Cir. Dec. 3, 1990) (permanent injunction). Thereafter, the Court" }, { "docid": "23366780", "title": "", "text": "MINER, Circuit Judge: Plaintiff-appellant Christopher C. Day appeals from a judgment of the United States District Court for the Southern District of New York (Duffy, J.) dated October 30, 1989, dismissing his complaint for failure to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(b)(6), and from a December 13 order of that court denying leave to file an amended complaint, see Fed.R.Civ.P. 15(a). Day alleged in his initial complaint that defendants-ap-pellees, acting under color of state law, deprived him of his constitutional rights in violation of 42 U.S.C. § 1983 (1982) when they arrested, searched, detained and prosecuted him on a charge of criminal trespass. On appeal, Day contends that the district court erred in dismissing the claims against defendants-appellees John W. Moscow and Joseph B. Murray. He also contends that the district court abused its discretion in denying his post-judgment motion for leave to file an amended complaint amplifying his claims against Moscow and Murray. Day does not address the claims pleaded against the other defendants, and we therefore have no reason to do so. See Kletsckka v. Driver, 411 F.2d 436, 446-47 (2d Cir.1969); Fed.R.App.P. 28(a)(4). For the reasons that follow, we affirm the dismissal of the claim of malicious prosecution against Moscow, reverse the dismissal of the claims of false arrest and illegal search and seizure against Moscow and Murray, and remand the case for further proceedings consistent with this opinion. BACKGROUND Day made the following allegations in his complaint, which we accept as true for purposes of reviewing this motion to dismiss. On December 11, 1985, Day and an attorney for whom he worked as a paralegal went to the ninth floor of the criminal courts building at 111 Centre Street in Manhattan. After receiving verbal authority from a Correction Officer, Day waited outside the prisoner “holding pens” while the attorney went inside to consult with a client. The following day, defendant-appel-lee John W. Moscow, an Assistant District Attorney for New York County, observed Day in a courtroom gallery and “directed” defendant-appellee Joseph B. Murray, a Senior Court Officer, to arrest him." }, { "docid": "22831743", "title": "", "text": "That his filings are pro se offers Farguson no impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets. Although the first complaint was found to be frivolous and irrational, the district court dismissed with prejudice but without imposing sanctions. When Farguson persisted and refiled an embellished complaint against the same parties the district court acted within its range of discretion in imposing Fed.R.Civ.P. 11 sanctions. The monetary sum imposed, $500 to each party brought before the court, was well within the court’s range of authority. So too the further sanction, ordering Farguson to refrain from filing suit against these defendants on these claims. The injunction component of the sanctions imposed is a drastic remedy, but it is warranted in the present case. In Day v. Allstate Ins. Co., 788 F.2d 1110 (5th Cir.1986), we cautioned that where monetary sanctions are ineffective in deterring vexatious filings, enjoining such filings would be considered. Our colleagues in the Second Circuit have reached the same conclusion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984). As that court aptly noted, the injunction against future filings must be tailored to protect the courts and innocent parties, while preserving the legitimate rights of litigants. The court’s power to enter such orders flows not only from various statutes and rules relating to sanctions, but the inherent power of the court to protect its jurisdiction and judgments and to control its docket. The injunction imposed by the district court is specific and limited. It relates only to the same claims against the same defendants. Other claims or claims against other parties are not enjoined. And with the simple expedient of leave of court, claims against these same parties, which might be taken as similar, may be presented. Accordingly, while the order penalizes Farguson for abusive litigation, the injunction imposed by the district court serves only to effectuate its judgment and protect these named defendants from further litigation on claims which twice have been found to be frivolous. In Martin-Trigona, a broader injunction," }, { "docid": "11069774", "title": "", "text": "her position pretextual. Murray’s Title VII sex discrimination claim thus survives summary judgment. Of course, that claim lies only against Gilmore in his official capacity, as our case law clearly precludes a suit against him individually. See Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.1995). IV. Murray has waived her remaining two claims. In order for her claim under D.C.’s Comprehensive Merit Personnel Act to survive summary judgment, she must demonstrate that her termination (for purposes of the Act) occurred at the time of Jones’s hiring rather than at the time of the RIF, since by the latter time Gilmore had issued the personnel manual that (pursuant to the Pearson Order) ended the Act’s applicability to Housing Authority employees like Murray. Because Murray’s brief nowhere argues this point, she has waived the claim. See, e.g., City of Waukesha v. EPA, 320 F.3d 228, 250 n. 22 (D.C.Cir.2003) (per curiam) (argument inadequately raised in opening brief is waived). Murray has similarly waived her due process claim by failing to argue that she has a constitutionally protected property interest in her job. Indeed, she nowhere responds to Gilmore’s assertion that employees terminated pursuant to an RIF lack such an interest. See id.; cf. Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (noting that the “premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them”). Because none of Murray’s claims against Gilmore in his personal capacity remains alive, we leave for another day the issue of whether, as Gilmore argues, eourt-appoint- ed receivers enjoy quasi-judicial immunity in their personal capacity. We reverse the district court’s entry of summary judgment for Gilmore with respect to Murray’s Title VII sex discrimination claim against him in his official capacity and remand for further proceedings. In all other respects, we affirm. So ordered." }, { "docid": "22633093", "title": "", "text": "the plaintiff should be provided with an opportunity to oppose the entry); Martin-Trigona v. Lavien, 737 F.2d 1254, 1260 (2d Cir.1984) (plaintiff’s assertion that he was denied due process by the district court’s issuance of a pre-filing injunction against his litigation activities was upheld when the party was given adequate notice and opportunity to be heard at a hearing on issuance of the pre-filing injunction). “Due process requires notice and an opportunity to be heard.” Powell, 851 F.2d at 431. Here, the record does not indicate that De Long was provided with adequate notice and a chance to be heard before the order was filed. Therefore, we remand so the court can provide De Long with an opportunity to oppose the entry of the order. B. Adequate Record for Review The second problem we encounter is that the district court did not create an adequate record for review. See id.; Moy, 906 F.2d at 470. While the record may be complete with regard to the habeas petitions, it is not sufficiently developed to show that De Long is abusing the judicial system. An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed. See Martin-Trigona, 737 F.2d at 1270-74. At the least, the record needs to show, in some manner, that the litigant’s activities were numerous or abusive. See, e.g. Wood, 705 F.2d 1515, 1523, 1526 (35 related complaints filed); Oliver, 682 F.2d at 444 (over 50 frivolous cases filed); In re Green, 669 F.2d 779, 781 (D.C.Cir.1981) (per curiam) (over 600 complaints filed). Here, the district court’s record fails to set forth in any form the filing of cases and motions that support the conclusion that De Long’s filings are so numerous or abusive that they should be enjoined. Therefore, we must remand on this basis as well. C. Substantive Findings of Frivolousness Next, we find that before a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as" }, { "docid": "22629907", "title": "", "text": "OPINION PER CURIAM. In November 2010, James Murray, a federal prisoner currently housed in the Special Management Unit (“SMU”) at the United States Penitentiary in Lewisburg, Pennsylvania, filed in the District Court a pro se petition for judicial review of a decision of the Federal Bureau of Prisons (“BOP”). Murray’s petition claimed that he has a constitutional right under the Ninth Amendment to choose his SMU cellmate. Before filing in the District Court, Murray had sought an administrative remedy from the BOP, alleging a right to choose his cellmate and requesting that the BOP allow him to do so. The BOP found Murray had no such right and denied his request. In his petition for judicial review, Murray requested that the District Court set aside the BOP’s decision. The District Court denied Murray’s petition as meritless. Murray now appeals from the District Court’s judgment; requests that we take judicial notice of certain case law, pleadings, and other documents, and appoint counsel on his behalf; and moves to amend deficient judicial statements. We have jurisdiction pursuant to 28 U.S.C. § 1291 and may affirm the District Court’s judgment on any basis supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Because this appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. Murray argues that the Ninth Amendment “protects rights that are ‘fundamental,]’ ” such as “rights to marry; to raise a family; the right to an abortion[,]” and the right to choose one’s cellmate. Although there is some authority for the proposition that the Ninth Amendment is a source of fundamental rights, see Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring), no court of which we are aware has held that the Ninth Amendment establishes a right to choose one’s cellmate. To the contrary, those courts confronted with the question of whether inmates have a constitutional right to choose a cellmate have held that no such right exists. See Harris v. Greer," }, { "docid": "18168807", "title": "", "text": "the judicial process. See Martin-Trigona, 737 F.2d at 1262-63; Sassower v. Sansverie, 885 F.2d 9, 10-11 (2d Cir.1989) (per curiam). Raffe and defendant-appellee A.R. Fuels, Inc., a company owned by Raffe, also have requested injunctive relief. Since this is the first suit Polur has filed against them, we find that the district court properly denied their application for that relief. However, we “give fair warning to [Polur] that if he continues to abuse the judicial process by the instigation of frivolous” suits against Raffe and A.R. Fuels, a similar order will be issued on their behalf. Sassower, 885 F.2d at 11. Finally, since it was necessary to modify the injunction, Polur’s appellate claims were not wholly frivolous and therefore we deny appellees’ requests for sanctions on this appeal. See Fed.R.App.P. 38. CONCLUSION The judgment of the district court dismissing the complaint is affirmed. We remand to the district court for entry of an order, consistent with this opinion, modifying the injunction barring Polur from filing further suits against Schneider and FKMF. No costs are awarded on this appeal." }, { "docid": "18168806", "title": "", "text": "inadequate remedy at law, do not apply to the issuance of an injunction against a vexatious litigant.” In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.1984); see Hartford Textile, 681 F.2d at 897. Although sanctioned by Judge Lowe in FKMF II, Polur has continued to file frivolous, repetitious suits. Judge Stanton’s order was proper, since the imposition of other sanctions has failed to impress upon Polur the impropriety of his actions. See Martin-Trigona, 737 F.2d at 1262; Hartford Textile, 681 F.2d at 897. Our only concern is that the parameters of the injunction are not adequately defined. We therefore modify the order to enjoin Polur from filing without leave of the district court further suits in the federal district courts of New York against FKMF, its attorneys or employees arising out of or relating to the dissolution and receivership of Puccini Clothes, Ltd. The order does not have the effect of denying Polur complete access to the New York federal district courts. Similar orders have been imposed by this court to maintain the integrity of the judicial process. See Martin-Trigona, 737 F.2d at 1262-63; Sassower v. Sansverie, 885 F.2d 9, 10-11 (2d Cir.1989) (per curiam). Raffe and defendant-appellee A.R. Fuels, Inc., a company owned by Raffe, also have requested injunctive relief. Since this is the first suit Polur has filed against them, we find that the district court properly denied their application for that relief. However, we “give fair warning to [Polur] that if he continues to abuse the judicial process by the instigation of frivolous” suits against Raffe and A.R. Fuels, a similar order will be issued on their behalf. Sassower, 885 F.2d at 11. Finally, since it was necessary to modify the injunction, Polur’s appellate claims were not wholly frivolous and therefore we deny appellees’ requests for sanctions on this appeal. See Fed.R.App.P. 38. CONCLUSION The judgment of the district court dismissing the complaint is affirmed. We remand to the district court for entry of an order, consistent with this opinion, modifying the injunction barring Polur from filing further suits against Schneider and FKMF. No costs are awarded" }, { "docid": "23076633", "title": "", "text": "these issues and determine whether Marvin’s suit may go forward on these portions of his second claim. Finally, we find that the district court did not abuse its discretion in denying reconsideration of the judgment to the extent that the judgment dismissed Marvin’s second claim as it related to his due process challenge to the parole denials and his third claim that DOCS improperly refused to release his common law wife’s correspondence. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998) (reviewing denial of reconsideration for abuse of discretion). In light of our decision to vacate the district court’s judgment with respect to all other claims, the remainder of Marvin’s appeal from the order denying reconsideration is moot. CONCLUSION For these reasons, we vacate the district court’s denial of preliminary injunctive relief and its dismissal of plaintiffs first, fourth and fifth claims and of plaintiffs second claim as it relates to his the ex post facto challenge- to the denials of his parole applications and his due process challenge to the denial of his work release application. We remand for further proceedings with respect to these portions of the action. We affirm the district court’s dismissal of plaintiffs other claims and its denial of plaintiffs motion for reconsideration. . We note that Marvin's appeal from the judgment, docketed as No. 99-0295, is in administrative default. However, we liberally construe Marvin’s related October 26, 1999 . notice of appeal, docketed as No. 99-0325, as a timely appeal of both the judgment and the denial of reconsideration. Although the notice of appeal identifies the reconsideration order as the order from which Marvin was appealing, it is clear that Marvin intended to appeal the district court's prior dismissal of his claims. See Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir.1999) (noting that this Court construes the papers of pro se litigants liberally and that evinced intent to appeal order or judgment is sufficient). . We do not reach the question of whether exhaustion is required if the challenged conduct is undertaken pursuant to a prison policy" }, { "docid": "23011823", "title": "", "text": "tort claims. Murray’s claims arise from his arrest on July 28, 1997, and include claims of unlawful search and seizure, denial of counsel, cruel and unusual punishment, conspiracy, malicious prosecution, slander per se, retaliation, race harassment, race discrimination, intentional infliction of emotional distress, and false arrest and imprisonment. The complaint seeks “actual damages” in the amount of $160 million as well as punitive damages. On October 28, 1999, the district court dismissed Murray’s case for failure to attend the Status and Scheduling Conference. Murray appealed. This Court vacated the district court order and remanded with instructions to reinstate the case. Murray then filed a motion to re-cuse District Judge Frank Seay. On December 7, 2000, the district court en tered an order denying Murray’s motion. Murray appealed. This Court dismissed Murray’s appeal for lack of prosecution. Defendant City of Tahlequah and Defendant Cherokee County Board of Commissioners subsequently filed separate summary judgment motions on April 26, 2001 and April 27, 2001, respectively. Murray’s responses were due on May 11 and May 14. Murray filed a response to both motions on May 17, 2001. Based solely on Murray’s failure to file a timely response, the district court entered a minute order granting Defendants’ motions on May 16, 2001. Murray appeals. II. This Court generally treats a district court’s application of local rules to grant an uncontested summary judgment motion as a sanction, requiring application of the sanction analysis specified in Meade v. Grubbs, 841 F.2d 1512 (10th Cir.1988). See, e.g., Murray v. Archambo, 132 F.3d 609, 610 (10th Cir.1998). In this case, the district court did not perform the sanction analysis, granting Defendants’ summary judgment motions based solely on Murray’s failure to file a timely response. Accordingly, the determinative issue on appeal is whether a district court can grant summary judgment pursuant to a local rule without making the determinations required by Fed.R.Civ.P. 56(c). We hold that it cannot. A. District courts are authorized to prescribe local procedural rules provided the rules are consistent with the Acts of Congress and the Federal Rules of Procedure. See 28 U.S.C. § 2071; Fed.R.Civ.P." }, { "docid": "22366028", "title": "", "text": "speech that would not be vulnerable to the specific Garcetti analysis that had defeated the claim premised on the October 1999 Report. The proposed amended pleading frames Ruotolo’s April 2000 conversation with PBA representatives as an episode of protected speech made in his capacity as a private citizen. A denial of a motion to vacate a judgment under Rule 60(b) is reviewed for abuse of discretion, see Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998), likewise, a denial of leave to amend a complaint under Rule 15(a), see Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (per curiam). A party seeking to file an amended complaint postjudgment must first have the judgment vacated or set aside pursuant to Fed.R.Civ.P. 59(e) or 60(b). See Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244-45 (2d Cir.1991) (noting that Rule 15(a)’s liberal amendment policy should not “be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation” (internal quotation marks and citation omitted)). Ruotolo moved to set aside the judgment pursuant to Rule 60(b), a mechanism for “extraordinary judicial relief’ invoked only if the moving party demonstrates “exceptional circumstances.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.1994) (citation omitted). The district court found no such “exceptional circumstances,” and Ruotolo’s appeal does not press for relief on that ground. Nor does there appear to be a basis for Rule 60(b) relief. Therefore, ordinarily “it would be contradictory to entertain a motion to amend the complaint.” Nat’l Petrochemical Co. of Iran, 930 F.2d at 245. However, we have said in dicta that .“in view of the provision in rule 15(a) that ‘leave [to amend] shall be freely given when justice so requires,’ it might be appropriate in a proper case to take into account the nature of the proposed amendment in deciding whether to vacate the previously entered judgment.” Id. (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Even assuming that a post-judgment motion" }, { "docid": "22629909", "title": "", "text": "750 F.2d 617, 618 (7th Cir.1984); see also Cole v. Benson, 760 F.2d 226, 227 (8th Cir.1985) (per curiam) (inmate has no Eighth Amendment right to be placed in a particular cell). Accordingly, the District Court properly denied this claim. In his brief in opposition to summary action, Murray advises that, since the time he filed his petition in the District Court, he has been placed with a desirable cellmate. He still wishes to proceed with the appeal, however, in order to challenge the broader BOP policy disallowing prisoners to choose their cellmates. Murray did not raise this broader challenge in the District Court; therefore, it is waived on appeal. Because this appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. Murray’s request for appointment of counsel, request to take judicial notice, and motion to amend deficient judicial statements will be denied. . Murray styled his petition as a challenge to the BOP’s decision under the Administrative Procedure Act (\"APA”). BOP decisions about where to house inmates, however, are exempt from challenge under the APA. See 18 U.S.C. § 3625 (explaining that the APA’s provisions for judicial review of administrative agency decisions, at 5 U.S.C. §§ 701-06, do not apply to decisions made under 18 U.S.C. §§ 3621— 26, including BOP decisions about where to house inmates governed by 18 U.S.C. § 3621(b)). Perhaps with this in mind, Murray’s filing was docketed in the District Court as a habeas petition. The filing was probably not a true habeas petition because it did not challenge the \"very fact or duration” of Murray's imprisonment, see Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and would probably be most accurately classified as an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). How the petition is classified is not of great importance, however, because the District Court properly denied Murray’s claim as lacking in merit." }, { "docid": "22319879", "title": "", "text": "sanctions order and impose additional sanctions under Rule 38 of the Federal Rules of Appellate Procedure. Mack did not respond and on July 21, 1994, we summarily affirmed the district court’s order and imposed an additional sanction on Mack (again payable to his adversary) of $5,000. The district court meanwhile enjoined Mack from filing any additional motions without leave of court, and he has appealed from the injunction as well as from the district court’s order imposing the $500 sanction. He has also taken to sending abusive letters to judges of this court. And he has yet to pay a cent of the sanctions imposed on him. Behavior of this character cannot be tolerated. The judicial authority to curb it is ample. See, e.g., In re Anderson, — U.S. -, 114 S.Ct. 1606, 128 L.Ed.2d 332 (1994) (per curiam); Sassower v. Mead Data Central, Inc., — U.S. -, 114 S.Ct. 2, 126 L.Ed.2d 6 (1993) (per curiam); Sassower v. American Bar Association, 33 F.3d 733 (7th Cir.1994) (per curiam); Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir.1993); Martin-Trigona v. Sassower, 9 F.3d 226, 228 (2d Cir.1993); Gelabert v. Lynaugh, 894 F.2d 746, 748 (5th Cir.1990) (per curiam). The only question is the most effective form in which to exercise that authority in this case, consistent with the Supreme Court’s admonition that any sanction imposed by a federal court for the abuse of its processes be tailored to the abuse. In re Anderson, supra, — U.S. at -, 114 S.Ct. at 1608; Sassower v. Mead Data Central, Inc., supra, — U.S. at -, 114 S.Ct. at 3. We should therefore consider a range of possible alternatives. The imposition of monetary sanctions has had no effect on Mr. Mack, and the costs and delay in the enforcement of such sanctions counsel against our simply ratcheting up the bill, which has grown from $100 to $5,500 with no effect on Mack’s proclivity for frivolous filings. Nor has the repeated rejection of his groundless, fraudulent filings had any effect on him other than to incite him to redouble his filings and to escalate" }, { "docid": "22831775", "title": "", "text": "before it the information that (1) the district court in Bobo I allowed the COLA to be repealed as to those who had terminated employment with TCU prior to 1991; (2) the COLA had in fact been repealed; and (3) an action determining the legality of the repeal was still pending in Maryland. We determine that we can. The district court addressed Federal Rules of Civil Procedure 59, 60, and 65 in its January 29, 1998, rulings on the COLA amendment. Rule 59(e) provides for the altering or amending of a judgment. See Fed.R.Civ.P. 59(e). Rule 60(b) allows relief from a judgment or order when evidence has been newly discovered or for any other reason “justifying relief from the operation of the judgment.” See Fed.R.Civ.P. 60(b)(2), (6). Rule 65 provides for the issuance of a preliminary injunction. See Fed.R.Civ.P. 65. We review a district court’s ruling on motions under all of these Rules for an abuse of discretion. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983) (Rule 59); Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998) (Rule 60); Securities and Exch. Comm’n v. Cavanagh, 155 F.3d 129, 132 (2d Cir.1998) (Rule 65). We find that the district court’s actions in refusing to re-open Devlin II with respect to the COLA amendment and with respect to \"the preliminary injunction did not constitute an abuse of discretion. The exact COLA issue that the appellants are pursuing in Devlin II is being addressed by the district court in Maryland. While appellants argue that Bobo II was filed after Devlin II, that consideration is not determinative, and the district court’s failure to weigh it heavily was not an abuse of discretion. It seems eminently sensible that the Maryland district court should resolve fully the COLA amendment issue, given that that court already ruled that the amendment could be repealed as to those who retired prior to 1991, and that court is already entertaining a suit in which the legality of such a repeal is at issue. Moreover, though Devlin did not want to be the lead defendant" }, { "docid": "18882033", "title": "", "text": "person, that his position was groundless, sanctions should be imposed. Bacon v. American Fed’n of State, County, Mun. Employees Council, 795 F.2d 38, 35 (7th Cir.1986). This appeal presents such a cause. Perry offered no valid legal support for his position on appeal other than that properly rejected by the district court. Therefore, we conclude that sanctions are appropriate and award $1,000 in sanctions in lieu of attorney’s fees. By way of caution, we note that federal courts possess the inherent power and constitutional obligation to prevent abuse of the judicial process by a litigant who engages in a pattern of frivolous litigation. In re Davis, 878 F.2d 211, 212 (7th Cir.1989) (per curiam) (citing In re McDonald, 489 U.S. 180, 185 n. 8, 109 S.Ct. 993, 996 n. 8, 103 L.Ed.2d 158 (1989) (quoting In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir.1984))). When a litigant persists in such conduct courts have exercised this power by imposing regulatory injunctions designed to prohibit the filing of duplicative and frivolous actions. Id.; Lysiak v. C.I.R., 816 F.2d 311 (7th Cir.1987) (per curiam); Green v. Warden, U.S. Penitentiary, 699 F.2d 364 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); see also Lumbert v. Illinois Dept. of Corrections, 827 F.2d 257, 259 (7th Cir.1987). Should Perry continue on this course of pursuing frivolous litigation, he should take heed this warning lest he find himself subject to similar regulation. E.g., Miller v. United States, 868 F.2d 236, 241 (7th Cir.1989) (litigant who persisted in pressing identical frivolous claims following a monetary sanction enjoined from filing further frivolous litigation). The appellees’ motion to dismiss the appeal is Denied, and the judgment of the district court is Affirmed with sanctions. . The defendants-appellees filed a motion to dismiss the appeal for failure to post a bond for costs on appeal as required by Federal Rules of Appellate Procedure 7 and by order of the district court. Although the failure to comply with Rule 7 may warrant dismissal of the appeal, e.g., Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir.1987)" } ]

[ { "docid": "5400780", "title": "", "text": "G. Florence (“Florence”), plaintiff, against the United States Postal Service (“Postal Service”) based on Title VII of the Civil Rights Act of 1964, (as amended, 42 U.S.C. § 2000e et seq.)] § 501 of the Rehabilitation Act of 1973 (as amended 29 U.S.C. § 791 et seq.) and 39 U.S.C. § 1208(b) of the Postal Reorganization Act (39 U.S.C. § 101 et seq.). Plaintiff complains that he has been discriminated against on the basis of race and sex in violation of Title VII. He also complains that he has been discriminated against on the basis of his handicap in violation of the Rehabilitation Act, and further that the Postal Service breached a collective bargaining agreement by transferring him to a particular postal station in violation of 39 U.S.C. § 1208(b) of the Postal Reorganization Act. Before the Court is the defendant’s Motion for Summary Judgment. For the reasons set out below, I recommend that the motion be granted. FACTUAL SUMMARY Plaintiff is a thirty-four (34) year old black male employee of the Postal Service hired on July 8, 1985, as a letter carrier. (Plaintiffs Deposition at 7) He suffered a back injury (a chronic lumbosacral spine sprain) as a result of an on-the-job injury sustained in an automobile accident on August 21, 1986. (Id. at 77); (Deposition Exhibit No. 1). As a result of his injury, he was out of work for seven (7) months. (Id. at 17.) He applied for and was paid injury compensation by the Department of Labor for the seven (7) months he was out. (Id. at 18.) At the time of his injury his duties included walking and carrying mail. (Id. at 16) His injury prevented him from those activities. (Id.) When he returned after seven (7) months, he was unable to return to full duties. (Id. at 18) In July, 1987, he bid on a letter carrier job at the Highland Hills Station which he was awarded on the basis of his seniority. (Id. at 19) The specific job required eight (8) hours, however, at this time plaintiff could only work four (4) hours" } ]

[ { "docid": "3699324", "title": "", "text": "are cited. Id. .In its motion for summary judgment, in connection with its argument that Florence is not qualified, the Service briefly contends that Florence is attempting to force the Service to accommodate him in the position of a letter carrier. However, for reasons that will become apparent in this section, the court finds that accommodation is not an issue in this summary judgment analysis. . The court recognizes that the Postal Service distinguishes between light duty and limited duty. \"Limited duty” is available to those workers injured on the job, while \"light duty” is available to employees whose injuries are not employment-related. More specifically, light duty refers to assignments given incapacitated employees under a collective bargaining agreement, while \"limited duty” refers to assignments given under Labor Department regulations. Ensley-Gaines v. Runyon, 100 F.3d 1220, 1222 (6th Cir.1996). For purposes of the discussion of which job should be used to determiné plaintiffs qualifications, the court finds the distinction between limited duty and light duty to be immaterial. . The Postal Service also relies on the undersigned’s findings in Florence's previous case Florence v. Frank, reported at 774 F.Supp. 1054 (N.D.Tex.1991), to support its argument that plaintiff's qualifications should be determined based on his official position of letter carrier. However, there are distinctions between this case and the previously litigated case which preclude comparison between the two. In Florence v. Frank, plaintiff challenged a transfer from the Highland Hills station to the Northlake station in August, 1987. Plaintiff’s argument in that case was that he could perform the essential functions of the letter carrier's position he had bid on and been awarded if the Postal Service would provided him with reasonable accommodation. Plaintiff argued that he could deliver mail and suggested in his response to the defendant’s motion for summary judgment that a motorized vehicle could be provided him to help carry out his deliveries. Based oh this argument, this court measured his qualifications against a letter carrier's and found him unqualified because he could not perform the essential functions of a letter carrier. The dispute in that case did not" }, { "docid": "3699323", "title": "", "text": "be discussed in the section on pretext, the \"determinative factor” standard of causation is the standard utilized in Title VII cases and will be used in the analysis in that section] As already mentioned § 501 is patterned after Title VII. Prewitt, 662 F.2d at 302-04 . As has been discussed in connection with plaintiffs § 501 claim, the statutory and case authority regarding handicap discrimination is, in some areas, confusing and overlapping. This has caused one jurist to describe the situation as presenting a \"Gordian knot of regulations, jurisprudence, and, occasionally, confused citations to each.” Magee v. United States Postal Service, 903 F.Supp. 1022, 1027 n. 4 (W.D.La.1995). Recognizing this, the court, however, cites to certain cases that may involve § 504 instead of § 501 or may involve an entity that receives federal financial assistance as opposed to the United States Postal Service. However, while the court understands the distinctions, it finds in those instances where it has relied on these cases that they provide \"substantial guidance” on the issues for which they are cited. Id. .In its motion for summary judgment, in connection with its argument that Florence is not qualified, the Service briefly contends that Florence is attempting to force the Service to accommodate him in the position of a letter carrier. However, for reasons that will become apparent in this section, the court finds that accommodation is not an issue in this summary judgment analysis. . The court recognizes that the Postal Service distinguishes between light duty and limited duty. \"Limited duty” is available to those workers injured on the job, while \"light duty” is available to employees whose injuries are not employment-related. More specifically, light duty refers to assignments given incapacitated employees under a collective bargaining agreement, while \"limited duty” refers to assignments given under Labor Department regulations. Ensley-Gaines v. Runyon, 100 F.3d 1220, 1222 (6th Cir.1996). For purposes of the discussion of which job should be used to determiné plaintiffs qualifications, the court finds the distinction between limited duty and light duty to be immaterial. . The Postal Service also relies on the" }, { "docid": "2464011", "title": "", "text": "Defendant filed a motion for summary judg ment which the district court granted on December 28, 1994. On December 29, 1994, Plaintiff filed a timely notice of appeal. For the reasons stated herein, the judgment of the district court is hereby REVERSED and REMANDED to the district court for proceedings consistent with this opinion. II. Within the Postal Service, there are several job functions know as “crafts,” including mailhandlers and clerks. Plaintiff was employed within the mailhandler craft as a full-time, Level 4 career mailhandler at the Royal Oak, Michigan General Mail Facility assigned permanently to the mail cancelling operation. Her duties as a mailhandler included lifting and dumping trays of letters onto a conveyer belt, operating cancelling machines, rewrap-ping damaged mail, and performing other duties associated with the movement and processing of bulk mail. Each'craft is represented by its own union and labor agreement. As a mailhandler, Plaintiff was subject to a Collective Bargaining Agreement (“Agreement”) between the Postal Service and the National Postal Mail Handler’s Union, which governed the rights, duties, and responsibilities of the Postal Service and the employees covered by that Agreement. Under the Agreement, employees who are temporarily unable to perform their duties may submit written requests for alternative assignments. Once such a request is submitted, supervisors are directed to “show the greatest consideration for ... employees requiring light duty or other assignments, giving each request careful attention, and reassign such employees to the extent possible in the employee’s office.” Agreement, Art. 13.2.C. Although Defendant recognizes that under the Agreement it must attempt to accommodate employees on temporary light-duty assignment, it asserts that it is under no obligation to provide a guaranteed number of work hours to such employees. Defendant also asserts that not all employees temporarily unable to perform their duties are governed solely by the Agreement. In particular, Defendant points out that the Postal Service distinguishes between light duty and limited duty. “Limited duty” is available to those workers injured on the job, while “light duty” is available to employees whose injuries are not employment-related. Defendant asserts that its obligation to provide limited-duty" }, { "docid": "3699284", "title": "", "text": "handicap and in retaliation for his previously filed EEO’s. The Postal Service has moved for summary judgment contending for several reasons that judgment must be entered in its favor in this case. First, with respect to. Florence’s claim of handicap discrimination under the Rehabilitation Act, the Service argues that Florence is not an “otherwise qualified” individual under the Act because he is unable to perform his duties as a letter carrier. Should the court find that plaintiff is “otherwise qualified, the Postal Service next maintains that it has articulated a legitimate nondiseriminatory reason for' his transfer. As to Florence’s Title VII retaliation claim, the Service argues that the challenged transfer does not constitute an “adverse employment action,” an essential element of his retaliation claim. Each of these issues will be addressed at length by the undersigned but, first, a review of relevant background facts is necessary. Factual Summary Plaintiff, Gerald G. Florence, is a 41 year-old employee of the Postal Service hired on July 6,1985, as a letter carrier. In 1986, he suffered an on-the-job back injury in an automobile accident after which he could no longer perform áll the duties of a letter carrier. Thereafter, he was assigned to limited duty at various stations. On March 28, 1989, he received a limited duty assignment to the Highland Hills Station in Dallas. He was not required to carry mail at Highland Hills. In December, 1990, Florence was transferred from Highland Hills to the Brookhollow Station against his will. The transfer' altered his scheduled work hours, his duties and lengthened his travel time to work. Florence’s job description, benefits, and salary, however,' were not affected by the transfer. According to Florence, the transfer came about after his supervisor, Clyde Henderson, asked him to change his restrictions so that he could carry mail at Highland Hills. Florence contends, he was transferred to the Brookhollow Station after he failed to change his restrictions. The Postal Service rejoins that the reason for Florence’s transfer to Brookhollow was not his handicap but the lack of available work for the limited duty employees at Highland Hills." }, { "docid": "3699306", "title": "", "text": "motivated the employer and (2) creates a reasonable inference that [a prohibited factor] was a determinative factor in the actions of which plaintiff complains.” Grimes, 102 F.3d at 141 citing LaPierre, 86 F.3d at 450 and Rhodes 75 F.3d at 994. In this case, as noted, there is no dispute between the parties over Florence’ handicap, and, for the reasons, set forth in the previous section, Florence has established that he is otherwise qualified to perform the limited duty job he was assigned to at the time of the transfer. Thus, the only issues under this McDonnell Douglas analysis are whether the Service has articulated a non-diserimi-natory reason for the transfer and, if so, whether Florence has presented competent summary judgment proof which creates a reasonable inference of discriminatory intent. With this in mind, the Court turns to the proof presented. The Postal Service contends, through the affidavit of plaintiffs former supervisor, Clyde Henderson, that the basis for Florence’s transfer was the lack of work available for limited duty employees at the Highland Hills Station and that Florence and other limited duty employees were so advised at the December, 1990 meeting. In addition to the stated reason that there was inadequate work within Florence’s limitations at the Highland Hills Station, Henderson also avers that on November 2, 1990, that Florence was issued new job restrictions and a modified job assignment for the Highland Hills Station which required carrying and casing the mail. He states that Florence refused to perform the casing and delivery requirements of his November 2,1990, modified job assignment, and suggests that this was an additional basis for Florence’s transfer to Highland Hills. Under the McDonnell Douglas analysis, the court must decide whether this explanation, if believed, would support a finding that the challenged transfer was non-diseriminatory. LaPierre, 86 F.3d at 448 citing Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. at 1094-95 & n. 10. The merits of the explanation are immaterial at this stage, because, “the employer need only articulate a lawful reason, regardless of what its persuasiveness may or may not be.” Bodenheimer" }, { "docid": "3699285", "title": "", "text": "back injury in an automobile accident after which he could no longer perform áll the duties of a letter carrier. Thereafter, he was assigned to limited duty at various stations. On March 28, 1989, he received a limited duty assignment to the Highland Hills Station in Dallas. He was not required to carry mail at Highland Hills. In December, 1990, Florence was transferred from Highland Hills to the Brookhollow Station against his will. The transfer' altered his scheduled work hours, his duties and lengthened his travel time to work. Florence’s job description, benefits, and salary, however,' were not affected by the transfer. According to Florence, the transfer came about after his supervisor, Clyde Henderson, asked him to change his restrictions so that he could carry mail at Highland Hills. Florence contends, he was transferred to the Brookhollow Station after he failed to change his restrictions. The Postal Service rejoins that the reason for Florence’s transfer to Brookhollow was not his handicap but the lack of available work for the limited duty employees at Highland Hills. The Service also states that in November, 1990 Florence’s restrictions were changed so that he could carry mail and he refused to carry out this responsibility. . In July, 1993,- Florence was transferred back to his modified job assignment at Highland Hills. Against this factual backdrop, the Court turns to its analysis of the defendant’s motion beginning with a review of the relevant summary judgment standards. Summary Judgment Standards Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material facts exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. The burden is on the movant to prove that no genuine issue of material" }, { "docid": "3699308", "title": "", "text": "v. PPG Ind., Inc., 5 F.3d 955, 958 (5th Cir.1993). The Court finds that if the Postal Service’s explanation, if believed by the fact finder, supports a finding that handicap discrimination was not the basis for the transfer. Having so found, the focus shifts to the plaintiffs summary judgment proof to determine if it is such that it creates a reasonable inference of discriminatory intent. Florence’s proof of discriminatory intent includes consists of affidavit testimony of the plaintiff and other postal employees, familiar with the circumstances surrounding the transfer, which refutes the Service’s contention that there was inadequate work at Highland Hills in December, 1990. First, Florence in his affidavit, states that December, 1990, he was called to a meeting by his supervisor, Clyde Henderson, where he and other limited duty employees were asked to change their physical restrictions so that they could carry mail. Florence states that when he did not change his restrictions, he was transferred to Brookhollow. Florence also maintains in his affidavit that there was adequate work available for all of the limited duty employees at Highland Hills at the time he was transferred, and that he was never informed otherwise. He also disputes that he was ever given a modified job assignment in November, 1990. In support of his version of events, Florence also offers the affidavit of MiHe W. Williams, the Acting Union Steward at the Highland Hills Station in December, 1990, who states that at the time of Florence’s transfer; there was adequate work within his limitations at the Highland Hills Station. The affidavit of Larry Tolbert, a limited duty employee assigned to Highland Hills at the time of Florence’s transfer further' supports Florence’s rendition of what occurred. Tol-bert who was in attendance at the December, 1990 meeting, recounts that those in attendance were told that “if [they] wanted something [they] would have to give something in return”, and that they were specifically asked to have their doctors change their physical restrictions so that they could carry mail. He states that states there was still “ plenty of work” available at Highland Hills" }, { "docid": "3699299", "title": "", "text": "employer who chose to reassign an employee to light-duty work who had become unable to perform his original job would have an unsettling ‘carte blanche’ power over the employee.” Id. Other courts, have rejected plaintiffs’ light duty jobs as the basis for their qualifications, however, these courts have primarily focused on' the temporary nature of the light-duty jobs at issue, finding that the duties of a temporary assignment should not form the basis for gauging a plaintiff’s qualifications for the job in question. See Sidaris v. Runyon, 967 F.Supp. 1260, 1267-68, & n. 3 (M.D.Ala.1997) (court found plaintiff’s temporary light duty position was not the appropriate position for which her qualifications should be judged). See also Shiring, 90 F.3d at 831-32 (in rejecting plaintiff’s suggestion that he was qualified for his temporary ‘casing’ position which was not an official position the court stated: “it follows that the district court did not err in refusing to consider the non-existent position of ‘caser’ as an accommodation that would make Shiring qualified”). To support its argument, that Florence’s official position and the job for which he must be qualified is that of a letter carrier, the defendant provides personnel records which establish that Florence has been officially designated a “letter carrier” throughout his employment with Postal Service. But as in Garrett; “[T]o allow an employer to operate outside the Rehabilitation Act simply due to the formal job title that the employer has chosen to confer on an handicapped employee, contradicts not only common sense, but also the basic promise set forth in the regulations implementing the Rehabilitation Act that ‘the Federal Government shall become model employer of handicapped individuals.”’ Garrett, 820 F.Supp. at 989-40, citing 29 C.F.R. § 1613.703 (1992). Moreover, as with Garrett, Florence has at all times maintained that he should be permitted to assume his limited duty responsibilities at the Highland Hill Station and not those of a letter carrier rendering the Service’ argument that his qualifications should be measured against a letter carrier’s responsibilities even less logical. 820 F.Supp. at 940, n. 10 (“because Taylor seeks reinstatement in a" }, { "docid": "3699283", "title": "", "text": "FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE BOYLE, United States Magistrate Judge. Before the court is the Defendant’s Motion for Summary Judgment filed December 16, 1996. This motion was referred to the undersigned Magistrate Judge for recommendation pursuant to the District Court’s Order of Reference filed on June 24, 1997. Having reviewed the pleadings and the evidence submitted by the parties in connection with the motion, the undersigned recommends that the motion be Denied in its entirety as follows: This is a suit by Gerald G. Florence against his employer, the Postmaster General of the United States Postal Service (“Postal Service”) alleging handicap discrimination under § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., (“the Act”) and retaliation under Title VIÍ of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3 (“Title VII”). This case centers on an unwanted transfer plaintiff received in December, 1990. Florence, a limited duty employee of the Postal Service, claims that the transfer was based on his handicap and in retaliation for his previously filed EEO’s. The Postal Service has moved for summary judgment contending for several reasons that judgment must be entered in its favor in this case. First, with respect to. Florence’s claim of handicap discrimination under the Rehabilitation Act, the Service argues that Florence is not an “otherwise qualified” individual under the Act because he is unable to perform his duties as a letter carrier. Should the court find that plaintiff is “otherwise qualified, the Postal Service next maintains that it has articulated a legitimate nondiseriminatory reason for' his transfer. As to Florence’s Title VII retaliation claim, the Service argues that the challenged transfer does not constitute an “adverse employment action,” an essential element of his retaliation claim. Each of these issues will be addressed at length by the undersigned but, first, a review of relevant background facts is necessary. Factual Summary Plaintiff, Gerald G. Florence, is a 41 year-old employee of the Postal Service hired on July 6,1985, as a letter carrier. In 1986, he suffered an on-the-job" }, { "docid": "3699302", "title": "", "text": "which he had been officially offered and had accepted . This position required performance of-only sedentary duties. The affidavits of Postal Service officials also indicate that if a partially disabled employee, such as Florence, refuses or neglects to work after suitable work is offered under its policies, he may not be entitled to further compensation for wage loss and may be subjected to a penalty. To summarize, although the Postal Service urges this Court to analyze Florence’s qualifications as a letter carrier, its own summary judgmént proof militates against this approach. Given the fact that the position Florence occupied at the time of the challenged transfer was a limited duty position offered him in accordance with the Department of Labor’s policies and procedures governing the Postal Service, and not a short-term, informally created position, the Court finds persuasive the Garrett Court’s reasoning that it is against this position his qualifications to perform the job must be judged. The Postal Service does not offer any summary judgment proof that Florence was unable to perform the essential functions of the limited duty position he occupied at the time of his transfer and, therefore, this Court finds the Service’s argument that Florence is-not qualified under the Act unavailing and accordingly recommends its Motion for Summary Judgment DENIED on this point. 3. Pretext Defendant next argues that even if plaintiff is found otherwise qualified that the Postal Service has articulated a legitimate non-dis-eiiminatory reason for the transfer .which is not based on Florence’s handicap, rather was due to the lack of work available at the Highland Hills Station. This argument raises the McDonnell Douglas shifting-burden analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In cases under the Rehabilitation Act where the employer disclaims any reliance upon the plaintiff’s protéeted status in making the employment decision the burden shifting method of proof defined in McDonnell Douglas and its progeny applies to the' analysis. Burns v. City of Columbus Department of Public Safety, 91 F.3d 836, 841-42 & n. 8 (6th Cir.1996)(recognizing that appellate courts have “routinely” applied" }, { "docid": "3699301", "title": "", "text": "permanent-light duty position — not reinstatement as a rigger — it is difficult to see why Taylor’s qualifications to perform as a rigger have anything to do with the work which he seeks to continue to performing in the future.”). Although the Fifth Circuit has not directly addressed this issue, the Court finds the factors considered above instructive in determining whether the plaintiffs qualifications should be based upon his limited duty or his original position. First, as in Garrett, Florence has been formally offered and has accepted limited duty assignments within the Postal Service since his injury. According to the affidavits of Postal Service officials, these limited duty jobs are official positions and offered in accordance with the requirements imposed upon the Service by the Department of Labor’s policies and procedures. The positions may be modified based on a change in employer/employee conditions, but the employee has a right to appeal any modifications to his limited duty position. At the time of the challenged transfer, Florence was performing a limited duty assignment at Highland Hills which he had been officially offered and had accepted . This position required performance of-only sedentary duties. The affidavits of Postal Service officials also indicate that if a partially disabled employee, such as Florence, refuses or neglects to work after suitable work is offered under its policies, he may not be entitled to further compensation for wage loss and may be subjected to a penalty. To summarize, although the Postal Service urges this Court to analyze Florence’s qualifications as a letter carrier, its own summary judgmént proof militates against this approach. Given the fact that the position Florence occupied at the time of the challenged transfer was a limited duty position offered him in accordance with the Department of Labor’s policies and procedures governing the Postal Service, and not a short-term, informally created position, the Court finds persuasive the Garrett Court’s reasoning that it is against this position his qualifications to perform the job must be judged. The Postal Service does not offer any summary judgment proof that Florence was unable to perform the essential" }, { "docid": "7803280", "title": "", "text": "a disproportionate impact on pregnant employees. In fact, Appellant contends that a statistical analysis is not needed because Appellee admits that its modified duty policy was the basis for refusing modified duty to Appellant. As noted in Armstrong, Appellant must produce competent evidence showing that termination because of Appellee’s modified duty policy falls disproportionately on pregnant employees. See Armstrong, 33 F.3d at 1314. Appellant has failed to offer any evidence at all that Appellee’s modified duty policy results in a disproportionate termination of pregnant employees. For this reason, the district court was correct to conclude that Appellant had failed to establish a claim of disparate impact discrimination. III. CONCLUSION We conclude that Appellant has not established a prima facie case of either disparate treatment or disparate impact discrimination under the PDA. Accordingly, we affirm the district court’s grant of summary judgment in favor of Appellee. AFFIRMED. . Appellee reserves modified duly for employees with occupational injuries because there are only a limited number of light duty tasks available at any one time. If light duty were made available to all employees without regard to whether the injury was work-related, the light duty “positions” would be depleted and unavailable when needed by employees with workers’ compensation restrictions. . Appellant has correctly noted that support for her argument can be found in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir.1996). As in this case, Ensley-Gaines involved an employment policy which-provided limited duty only to employees who were injured on the job. See id. at 1222. The Sixth Circuit concluded that the proper comparison under the PDA was between pregnant employees and employees injured on the job, not between pregnant employees and employees injured off the job, as the Fifth Circuit later held in Urbano. See id. at 1226. Accordingly, the Sixth Circuit held that plaintiffs asserting a PDA claim need to demonstrate only that a non-pregnant employee similarly situated in his or her ability to work received more favorable benefits. See id. For the reasons stated above, however, we believe that the better position is that taken by the Fifth Circuit in" }, { "docid": "3699325", "title": "", "text": "undersigned’s findings in Florence's previous case Florence v. Frank, reported at 774 F.Supp. 1054 (N.D.Tex.1991), to support its argument that plaintiff's qualifications should be determined based on his official position of letter carrier. However, there are distinctions between this case and the previously litigated case which preclude comparison between the two. In Florence v. Frank, plaintiff challenged a transfer from the Highland Hills station to the Northlake station in August, 1987. Plaintiff’s argument in that case was that he could perform the essential functions of the letter carrier's position he had bid on and been awarded if the Postal Service would provided him with reasonable accommodation. Plaintiff argued that he could deliver mail and suggested in his response to the defendant’s motion for summary judgment that a motorized vehicle could be provided him to help carry out his deliveries. Based oh this argument, this court measured his qualifications against a letter carrier's and found him unqualified because he could not perform the essential functions of a letter carrier. The dispute in that case did not involve a limited duty job. See Mem. In Support of PTs Resp. To Def's. Mot. for Summ. J. at 9-12, 16, Florence v. Frank, CA-3-90-0310-G. .Def.'s Mot. For Summ. J., PTs Dep, Ex. 3, Ex. 18 Fuentes Affidavit (\"Fuentes Aff.”); Def.’s Reply, Ex. D. . Fuentes’ Aff. . Id. . Id. . PTs Dep., Ex. 3. . Fuentes’ Aff., citing 5 U.S.C. § 8106(c)(2). . Def.’s Reply at 4; Henderson Aff. . Henderson Aff. at ¶ 3. . Id. at ¶¶ 3, 4. . Florence Aff. . Id. at ¶ 9. . Id. at ¶ 10. . Pi’s Resp. Att. 2, Williams’ Aff. at ¶ 1 & 2. . Pi’s Resp., Att. 10, Tolbert Aff. . Id.- . Pi’s Resp. Att. 7, Cobb Aff. . In its motion for summary judgment, the Service also challenges Florence’s retaliation claim on the issue of pretext, however, in its reply brief the Service abandons this argument, consequently, it will not be addressed by the court. Def’s Reply, at 6. . Examples of other employment actions the Mattem court" }, { "docid": "2464022", "title": "", "text": "situated has been conclusively decided. First, Fields can be distinguished from the present case in several respects. Unlike the instant ease, which is an appeal from summary judgment, the district court in Fields weighed the evidence presented at trial and concluded that the pregnant plaintiff had established a prima facie case of sex discrimination, and the articulated reasons stated for the action of the Postal Service, which had placed plaintiff on involuntary maternity leave, was pretextual. On appeal, this Court reversed and held the district court’s finding of sex discrimination was not supported by substantial evidence and was clearly erroneous. The distinction between employees who were injured on the job and those who sustained non-job-related disabilities was considered in Fields for the purpose of determining whether the defendant’s reason for denying the plaintiff continued light-duty assignments due to her pregnancy was pretextual. In the present case, the district court drew a distinction between those employees injured on the job, assigned to limited duty, and those impaired because of non-job-related disability, assigned to light duty, for the purpose of determining whether the Plaintiff had carried her initial burden of demonstrating that “similarly situated employees” had received more favorable treatment. Furthermore, although the Postal Service continues to distinguish between limited-duty and light-duty employees, its internal policy in Fields was not the same as the Postal Service’s current policy with respect to procedures and treatment of injured employees. Plaintiff claims, however, that the Postal Service’s current policy makes no relevant distinction under the PDA between the two categories of disabled employees. Also, in Fields, unlike in this case, the court found there was no evidence that the Postal Service’s light-duty policy was applied differently to Plaintiff than any other employee with a non-job-related disability. More importantly, even assuming that Fields could be read for the proposition that light-duty and limited-duty employees are not similarly situated, it does not control the current dispute because the facts upon which that decision was based occurred prior to the enactment of the PDA and the court applied an analysis under Title VII only. While recognizing that discrimination" }, { "docid": "5400802", "title": "", "text": "he offers no competent evidence on this point. The defendant, on the other hand, in response to this contention, presents the supplemental affidavit of Clyde Henderson, which sets out that the only motorized route in the Highland Hills station is route 4101, a position held by an employee who acquired the route through the seniority process. Henderson stated that Article 41 of the collective bargaining agreement between the Postal Service and NALC, AFL-CIO would have been violated to have given plaintiff the motorized position. (Hend.Supp.Aff. at 3, 4; Ex. D, and Ex. E) An employer cannot be required to accommodate a handicapped employee by restructuring a job in a manner that would usurp the legitimate rights of other employees in a collective bargaining agreement. Jasany, 755 F.2d at 1251-52; Hurst v. United States Postal Service, 653 F.Supp. 259, 262 (N.D.Ga.1986). Moreover the motorized route is not the position for which he applied and a federal agency is under no obligation to transfer a handicapped employee from the job for which he is employed to some other position in order to provide him with work which he can perform. Wimbley, 642 F.Supp. at 486, citing Carty v. Carlin, 623 F.Supp. 1181, 1188-89 (D.Md.1985). The duty to reasonably accommodate only contemplates accommodation of a qualified handicapped employee’s present position. Black v. Frank, 730 F.Supp. 1087, 1091 (S.D.Ala.1990.), citing Carty v. Carlin, 623 F.Supp. at 1188. Plaintiff was at all times given work within his limitations. (Pl.Dep. at 67.) In sum, plaintiff has simply failed to raise a fact issue as to whether he was a “qualified” handicapped employee under the Rehabilitation Act. For this reason, the undersigned recommends that summary judgment issue on this claim. Contract Claim In plaintiffs third and final claim, he alleges that the Postal Service breached the collective bargaining agreement in effect with the NALC by reassigning him to the Northlake station. For the reasons set out below, this claim is also subject to summary judgment. Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 provides an employee with a federal cause of action" }, { "docid": "5400801", "title": "", "text": "203, 205) Alternatively, for plaintiff to have held the job, an essential function of it, walking and carrying the mail, would have to have been eliminated. As stated above, there is no such requirement under the Rehabilitation Act. Plaintiff has offered no competent evidence to establish a fact question on this material issue. Rather, it is his position that because at the time he was awarded route 4151 and could only work four hours a day, he should have been accommodated for those four hours at Highland Hills instead of Northlake. However, as defendants point out in their reply memorandum, “So long as a reasonable accommodation is provided, an employee may not dictate the terms of what work he will or will not accept, citing Carter v. Bennett, 651 F.Supp. 1299, 1301 (D.D.C.1987), aff’d 840 F.2d 63 (D.C.Cir.1988). Plaintiff also makes mention in his response to the defendant’s Motion for Summary Judgment that while he couldn’t carry the mail, he could deliver the mail in a motorized vehicle and should have been so accommodated. However, he offers no competent evidence on this point. The defendant, on the other hand, in response to this contention, presents the supplemental affidavit of Clyde Henderson, which sets out that the only motorized route in the Highland Hills station is route 4101, a position held by an employee who acquired the route through the seniority process. Henderson stated that Article 41 of the collective bargaining agreement between the Postal Service and NALC, AFL-CIO would have been violated to have given plaintiff the motorized position. (Hend.Supp.Aff. at 3, 4; Ex. D, and Ex. E) An employer cannot be required to accommodate a handicapped employee by restructuring a job in a manner that would usurp the legitimate rights of other employees in a collective bargaining agreement. Jasany, 755 F.2d at 1251-52; Hurst v. United States Postal Service, 653 F.Supp. 259, 262 (N.D.Ga.1986). Moreover the motorized route is not the position for which he applied and a federal agency is under no obligation to transfer a handicapped employee from the job for which he is employed to some" }, { "docid": "3699307", "title": "", "text": "and that Florence and other limited duty employees were so advised at the December, 1990 meeting. In addition to the stated reason that there was inadequate work within Florence’s limitations at the Highland Hills Station, Henderson also avers that on November 2, 1990, that Florence was issued new job restrictions and a modified job assignment for the Highland Hills Station which required carrying and casing the mail. He states that Florence refused to perform the casing and delivery requirements of his November 2,1990, modified job assignment, and suggests that this was an additional basis for Florence’s transfer to Highland Hills. Under the McDonnell Douglas analysis, the court must decide whether this explanation, if believed, would support a finding that the challenged transfer was non-diseriminatory. LaPierre, 86 F.3d at 448 citing Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. at 1094-95 & n. 10. The merits of the explanation are immaterial at this stage, because, “the employer need only articulate a lawful reason, regardless of what its persuasiveness may or may not be.” Bodenheimer v. PPG Ind., Inc., 5 F.3d 955, 958 (5th Cir.1993). The Court finds that if the Postal Service’s explanation, if believed by the fact finder, supports a finding that handicap discrimination was not the basis for the transfer. Having so found, the focus shifts to the plaintiffs summary judgment proof to determine if it is such that it creates a reasonable inference of discriminatory intent. Florence’s proof of discriminatory intent includes consists of affidavit testimony of the plaintiff and other postal employees, familiar with the circumstances surrounding the transfer, which refutes the Service’s contention that there was inadequate work at Highland Hills in December, 1990. First, Florence in his affidavit, states that December, 1990, he was called to a meeting by his supervisor, Clyde Henderson, where he and other limited duty employees were asked to change their physical restrictions so that they could carry mail. Florence states that when he did not change his restrictions, he was transferred to Brookhollow. Florence also maintains in his affidavit that there was adequate work available for all of" }, { "docid": "3699300", "title": "", "text": "official position and the job for which he must be qualified is that of a letter carrier, the defendant provides personnel records which establish that Florence has been officially designated a “letter carrier” throughout his employment with Postal Service. But as in Garrett; “[T]o allow an employer to operate outside the Rehabilitation Act simply due to the formal job title that the employer has chosen to confer on an handicapped employee, contradicts not only common sense, but also the basic promise set forth in the regulations implementing the Rehabilitation Act that ‘the Federal Government shall become model employer of handicapped individuals.”’ Garrett, 820 F.Supp. at 989-40, citing 29 C.F.R. § 1613.703 (1992). Moreover, as with Garrett, Florence has at all times maintained that he should be permitted to assume his limited duty responsibilities at the Highland Hill Station and not those of a letter carrier rendering the Service’ argument that his qualifications should be measured against a letter carrier’s responsibilities even less logical. 820 F.Supp. at 940, n. 10 (“because Taylor seeks reinstatement in a permanent-light duty position — not reinstatement as a rigger — it is difficult to see why Taylor’s qualifications to perform as a rigger have anything to do with the work which he seeks to continue to performing in the future.”). Although the Fifth Circuit has not directly addressed this issue, the Court finds the factors considered above instructive in determining whether the plaintiffs qualifications should be based upon his limited duty or his original position. First, as in Garrett, Florence has been formally offered and has accepted limited duty assignments within the Postal Service since his injury. According to the affidavits of Postal Service officials, these limited duty jobs are official positions and offered in accordance with the requirements imposed upon the Service by the Department of Labor’s policies and procedures. The positions may be modified based on a change in employer/employee conditions, but the employee has a right to appeal any modifications to his limited duty position. At the time of the challenged transfer, Florence was performing a limited duty assignment at Highland Hills" }, { "docid": "3699295", "title": "", "text": "question for purposes of this summary judgment analysis because under sole causation or another more lenient standard there are material fact questions on causation which preclude summary judgment. To summarize, although the precise elements necessary to prove a violation § 501 are not entirely clear, it does appear that in order to prove the prima facie elements of his § 501 claim, plaintiff must establish both that he is handicapped and that he is otherwise qualified with or without reasonable accommodation to perform the essential functions of his job. On the issue of causation, whether he must show that his handicap was the sole cause or a cause for his transfer is not clear from the cases or the statute, however, the Court need not resolve this issue because, as will be discussed, under either standard plaintiffs claim survives summary judgment. Having determined the relevant standard of proof for plaintiffs § 501 claim, the Court now turns to the merits of the summary judgment arguments. 2. “Otherwise Qualified” The Postal Service does not dispute Florence’s handicap, rather focuses first on his qualifications to perform his job. The Service contends that Florence is unable to perform the essential functions of the letter carrier position for which he was hired and, consequently, is not “otherwise qualified” under the Rehabilitation Act. Florence, on the other hand, does not dispute that he cannot perform the duties of a letter carrier. ' Instead, he urges that his qualifications to perform his job should be measured against the duties of the modified job assignment he was performing when the transfer occurred. In determining whether Florence can hurdle this initial summary judgment issue on whether he is qualified under the Act, the court must first determine which job he must be otherwise qualified to perform. An “otherwise qualified individual” is defined as an individual who “with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others” “and who meets the experience and education requirements of the position.” Magee, 903 F.Supp. at 1026" }, { "docid": "13667365", "title": "", "text": "eliminate letter carrying as a reasonable accommodation to this letter carrier. Although a federal employer need not eliminate an essential job function to accommodate a disabled employee, it must offer to reassign an employee who becomes unable to perform an essential job function to a funded, vacant position within the same commuting area and at the same grade or level. 29 C.F.R. § 1614.203(g); Shiring, 90 F.3d at 831-32. However, a Postal Service employee is not considered qualified for any offer of reassignment that is inconsistent with the terms of any applicable collective bargaining agreement. 29 C.F.R. § 1614.203(g). The law places the burden on the disabled Postal Service employee to demonstrate that there existed funded, vacant positions available under the collective bargaining agreement, the essential duties of which she was capable of performing, with or without reasonable accommodation. Shiring, 90 F.3d at 832. Here Plaintiff has not established that she was a qualified individual with a disability entitled to the reasonable accommodation of reassignment. The record establishes that when the router positions were to be abolished in 1994, Carmel Bennett discussed with Plaintiff transferring her to the clerk craft, which duties were indoors and, therefore, within her limitations. Plaintiff rejected that option because of the losses she would have suffered under the collective bargaining agreement. She also rejected an October 1996 offer of reassignment to a mail processing position. Plaintiff cannot expect the Postal Service to violate an applicable collective bargaining agreement to reassign her as a reasonable accommodation. 29 C.F.R. § 1614.203(g). See also Eckles v. Consol. Rail Corp., 94 F.3d 1041 (7th Cir.1996) (ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees); Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir.1995) (finding that employer had no obligation to violate collective bargaining agreement in order to accommodate Plaintiffs need for light duty work, even if it perceived him to have a substantial impairment); Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir.1995) (holding that ADA did not require transfer of employees to other jobs given that" } ]

[ { "docid": "22610217", "title": "", "text": "performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively. We also agree with the Court of Appeals that the Board did not exceed its remedial powers in directing the Company to resume its maintenance operations, reinstate the employees with back pay, and bargain with the Union. I. Section 8 (a)(5) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” Collective bargaining is defined in § 8 (d) as “the performance of the mutual ■ obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” “Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to ‘wages, hours, and other terms and conditions of employment . . . The duty is limited to those subjects, and within that area neither party is legally obligated to yield. Labor Board v. American Ins. Co., 343 U. S. 395. As to other matters, however, each party is free to bargain or not to bargain . . . .” Labor Board v. Wooster Div. of Borg-Warner Corp., 356 U. S. 342, 349. Because of the limited grant of certiorari, we are concerned here only with whether the subject upon which the employer allegedly refused to bargain — contracting out of plant maintenance work previously performed by employees in the bargaining unit, which the employees were capable of continuing to perform — is covered by the phrase “terms and conditions of employment” within the meaning of § 8 (d). The subject matter of the present dispute is well within the literal meaning of the phrase “terms and conditions of employment.” See Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330. A stipulation" } ]

[ { "docid": "880255", "title": "", "text": "its intention to close its Cincinnati terminal and by unilaterally closing such terminal and discharging its employees, violated 8(a)(1) and (5) of the Act and thereby failed and refused to bargain in good faith.” Opinion of the ALJ at 5. The ALJ found, and the Board affirmed, that notwithstanding the seven days advance notice of the closing which the company afforded the union. [i]t is clear from the actions of Respondent and counsel that it was not offering nor was it willing to bargain concerning a decision which had previously been made. Thus, the union was confronted with a fait accompli and was not afforded the opportunity to bargain during the critical time when such bargaining perhaps could have been productive, that is, the period when the decision was being considered and about to be made. Based on our review of the record, we conclude that even if we might have reached a different conclusion independently, there is substantial evidence in the record as a whole to support the ALJ’s findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Findings of an ALJ, if supported by substantial evidence, must be given conclusive effect on our review. In Eastern Engineering & Elevator Co., Inc. v. NLRB, 637 F.2d 191 (3d Cir. 1980), a decision filed after argument was heard in this case, our court commented upon the weight to be accorded to credibility findings of an ALJ: The Supreme Court has directed us to recognize that an ALJ’s findings of fact constitute a vital part of the whole record that the court must review. These findings “are to be considered along with the consistency and inherent probability of testimony. The significance of his report .. . depends largely on the importance of credibility in the particular case.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468 (1951). We must “recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the" }, { "docid": "3679335", "title": "", "text": "of Lodge 1746 thereupon suggested to the Company that the economic terms which had been worked out in December be incorporated into a new three-year contract to be subject to the outcome of all pending litigation. The Company responded by informing both Lodges, on March 10 and March 11 respectively, that it would decline to deal with them further until they demonstrated their majority status. The Unions then filed the instant refusal to bargain charges. The Board, adopting the Trial Examiner’s findings, conclusions, and recommendations, found that the Company violated section 8(a) (5) and (1) by withdrawing recognition from, and thereafter refusing to bargain with, the Lodges. We hold that tested by applicable criteria and the principles to be discussed, this finding lacks the support of substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1950). II The legal principles relating to withdrawal of recognition of a bargaining representative are well settled. Absent special circumstances, the union enjoys an irrebuttable presumption of majority status for one year after certification. Thereafter, the presumption con tinues but becomes rebuttable upon a showing of “sufficient evidence to cast serious doubt on the union’s continued majority status.” At that point, the burden shifts to the General Counsel to prove that, on the critical date, the union in fact represented a majority of the employees. No evidence was introduced to prove the Unions’ majority status. Such proof was here deemed unnecessary to make out a refusal to bargain, since the Company, in the Board’s view, was unable to rebut the continuing presumption of majority status. We disagree. The pertinent standard, “serious doubt,” has two components: a reasonable basis in fact, and good faith. The Trial Examiner found that neither element was shown by the Company. 1. Reasonable basis in fact. The Company points primarily to the sharp decline, following the 1960 strike, in the percentage of employees authorizing checkoffs. Dismissing this factor as an unreliable barometer of employee sentiment, the Board cites NLRB v. Gulfmont Hotel Co., 362 F.2d 588 (5" }, { "docid": "7238022", "title": "", "text": "PREGERSON, District Judge: Clear Pine Mouldings, Inc. (“Clear Pine” or “the company”) petitions for review of a decision by the National Labor Relations Board (“the Board”) that Clear Pine violated §§ 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (5), by improperly interrogating and reprimanding employees, by unilaterally altering the terms of employment, and by refusing to bargain in good faith with the International Woodworkers Ass’n (the union). Clear Pine also petitions for review of the Board’s bargaining order. The Board cross-petitions pursuant to 29 U.S.C. § 160(e) for enforcement of its order. This court will enforce the Board’s decision and order if the Board correctly applied the law and if its findings of fact are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); Los Angeles Marine Hardware Co. v. NLRB, 602 F.2d 1302, 1305 (9th Cir. 1979). When conflicting testimony is presented at a hearing, the administrative law judge, having observed the witnesses and heard the testimony, is required to determine the credibility of witnesses. Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 254 (9th Cir. 1978); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-79 (9th Cir. 1977). Accordingly, in reviewing the record, we give special weight to the administrative law judge’s determinations concerning the credibility of witnesses. Id. at 1079. §§ 8(a)(1), 8(a)(3) VIOLATIONS The union was first certified as the collective bargaining representative of the company’s production and maintenance employees on August 4, 1965. During the ensuing years, the unión and the company entered into a series of collective bargaining agreements, the last of which expired on June 1, 1977. In March 1977, in anticipation of forthcoming contract negotiations, the union began a membership drive among employees who had not yet joined. At an organizational meeting on March 25, the union urged employees to join the union to ensure its strength during negotiations. Some employees who attempted to speak on behalf of the company were shouted down." }, { "docid": "11585580", "title": "", "text": "(should that remain unresolved after our discussions) and the other issues that are outstanding in regard to the NLRB proceedings. Rather than answer TGP’s second letter, the Union charged the Company with refusing to bargain in good faith, in violation of § 8(a)(5) of the NLRA. The Board so held, giving rise to the present petition for review and the Board’s cross-application for enforcement. II. Analysis Our review of the Board’s unfair labor practice finding is for substantial evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). We will uphold the NLRB if its conclusions are based upon reasonable inferences drawn from the facts as it found them. Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980). Our review of a Board rule of general application, such as the contract bar rule (although adopted in an adjudication rather than a rulemaking proceeding), is “for consistency with the Act, and for rationality.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978). We take up first the Board’s finding that TGP refused to bargain in good faith with Local 32. Then we examine TGP’s attempt to invoke the contract bar rule and the Board’s refusal to consider an unsigned contract as a bar to the conduct of an election. A Refusal to Bargain Under § 8(a)(5) of the NLRA, it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Under § 8(d), the employer and its employees have a mutual obligation “to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” 29. U.S.C. § 158(d). TGP insists that its willingness to meet and discuss any and all issues with Local 32 was unequivocal. Because counsel for TGP wrote, however, that “any conclusions or agreements will have to be made subject to the final judgment of the federal courts as to which" }, { "docid": "2381019", "title": "", "text": "bargain with the union and by dealing directly with employees. The Board, after carefully examining the record, affirmed the AU’s decision with a few minor corrections. 293 N.L.R.B. No. 139 (1989). The company now turns to us with what are apparently the same arguments that the AU rejected. The company questions the AU's rulings on both the facts and the law. II. STANDARD OF REVIEW “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record as a whole shall be conclusive.” 29 U.S.C. § 160(e). See, e.g., Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” NLRB v. Cable Vision, Inc., 660 F.2d 1, 3 (1st Cir.1981) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)). This court must sustain “inferences drawn by the Board from the evidence ... or the application of a statutory standard to particular factfindings (e.g., bargaining in good faith)” if the conclusions are reasonable. Soule Glass, 652 F.2d at 1073. Finally, we may not substitute our judgment for that of the Board when the choice is “between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Cable Vision, 660 F.2d at 3 (iquoting Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464). See also Destileria Serrales, Inc. v. NLRB, 882 F.2d 19, 21-22 (1st Cir.1989). In light of these standards, and having reviewed the record and the NLRB’s order, we enforce the Board’s order. III. WITHDRAWAL OF RECOGNITION Under § 8(a) of the Act, it is an unfair labor practice for an employer “(1) to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 157 [to organize, join unions, bargain collectively and strike]” and “(5) to refuse to bargain collectively with representatives of his employees_” 29 U.S.C. § 158(a). In furtherance of these provisions," }, { "docid": "3651339", "title": "", "text": "Paper Products Corp. v. NLRB, 379 U.S. 203, 209-10, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964). The prohibition against unilateral changes extends past the expiration of a collective bargaining agreement until the parties negotiate a new agreement or bargain in good faith to impasse. NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir.1981). Because contributions to an employee pension trust fund constitute a mandatory bargaining subject, an employer may not make unilateral changes in pension fund contributions. Id. at 1213-14. An employer who does make such unilateral changes has committed an unfair labor practice in violation of sections 8(a)(1) and (5) of the Act. The Company does not dispute that it discontinued the pension trust fund contributions upon the expiration of the 1977-80 contract. Instead, the Company claims that: (1) the Union waived its right to object by contract and by inaction; (2) under section 302 of the Labor Management Relations Act (LMRA), the pension trust fund could not legally accept and the Company could not legally make further contributions; and (3) the charge is time barred by section 10(b) of the Act, 29 U.S.C. § 160(b). The Board concurred with the AU’s decision to reject these defenses. We enforce the Board’s order if the Board correctly applied the law and if the Board’s findings of fact are supported by substantial evidence in the record viewed as a whole, even if we might have reached a different conclusion based on the same evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Nevis Industries, 647 F.2d 905, 908 (9th Cir.1981). A. The Waiver Defenses 1. Contractual Waiver In collective bargaining, a union may waive a right that is protected by the Act. NLRB v. C & C Plywood Corp., 385 U.S. 421, 430-31, 87 S.Ct. 559, 565, 17 L.Ed.2d 486 (1967). A waiver must generally be clear and unmistakable. NLRB v. Southern California Edison Co., 646 F.2d 1352, 1364 (9th Cir.1981). Waivers occur by express contractual provisions, by bargaining history, or by a combination of the two. Chesapeake &" }, { "docid": "12960428", "title": "", "text": "other mutual aid or protection.” 29 U.S.C. § 158(a)(1); see also 29 U.S.C. § 157. Section 8(a)(3) in relevant part makes it an unfair labor practice to “discriminate] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). Section 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees_” 29 U.S.C. § 158(a)(5). The obligation to bargain collectively is further defined in Section 8(d) of the Act, which directs the union and the employer to “confer in good faith with respect to wages, hours, and other terms and conditions of employment....” 29 U.S.C. § 158(d). Matters falling within the category of wages, hours, and other terms or conditions of employment are mandatory subjects of bargaining. An employer commits an unfair labor practice under Section 8(a)(5) when it makes a unilateral change or otherwise fails to bargain in good faith on any mandatory subject. See 29 U.S.C. § 158(a)(5); First National Maintenance, 452 U.S. at 675, 101 S.Ct. 2573. III. A. This court will uphold the NLRB’s findings of facts if they are supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 326 (4th Cir.1997). The record supports the Board’s holding that the company committed certain violations of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act. Under Section 8(a)(1), the NLRB General Counsel presented a strong case that the company: 1) threatened the workers with plant closure and job loss if the union went on strike; 2) told workers that it would close the facility because it had no time to waste on negotiations; 3) directed employees to bring grievances to supervisors before going to the union; and 4) told workers not to talk to the union during working hours without a supervisor’s approval. Accordingly, substantial evidence exists that the company violated Section 8(a)(1) in these four respects. See CWI of" }, { "docid": "21487236", "title": "", "text": "v. NLRB, 331 F.2d 737, 738 (CA6, 1964). We recognize that the contrary conclusion of the trial examiner is to be considered in assessing the Board’s inference, Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-497, 71 S.Ct. 456, 95 L.Ed. 456, 469-472 (1951), but we are unable to conclude that its determination is without support by substantial evidence on the record considered as a whole. 4) Refusal to Bargain with Local 219 Again disagreeing with the trial examiner, the Board concluded that Kaase committed an unfair labor practice by refusing to bargain with Local 219 on October 25 and thereafter. Emphasizing that bargaining with Local 219 had been carried on up to October 24, the Board concluded that nothing occurred following that day to create a good faith doubt of Local 219’s continuing majority status. Its order requires that respondent Kaase “upon request, bargain collectively with American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO, as the exclusive representative of the employees in the aforesaid appropriate unit.” We are asked to enforce that order now, notwithstanding what may have occurred in the nearly three and one-half years that have gone by since, pursuant to Local 219’s notice to Kaase, the bargaining contract between them was terminated. To convict Kaase of violating Section 8(a) (5), 29 U.S.C.A. § 158, by its refusal to bargain further with Local 219, it is essential to find that at the time of the refusal Local 219 in fact enjoyed a majority status. The burden of proving such facts is on the General Counsel. “A prerequisite to finding that the Respondent violated Section 8(a) (5) of the Act, is proof that the Union in fact represented a majority of the Respondent’s employees at the time it requested bargaining. The burden of so proving rests, of course, upon the General Counsel.” (Emphasis supplied.) United States Molded Shapes, 141 NLRB 357, 359 (1963). As we view the record, the only thing upon which General Counsel could rely to carry his burden of proving that on October 25 Local 219 was, in fact, the chosen bargaining agent" }, { "docid": "12198343", "title": "", "text": "8(a) (5) on the basis of a card showing, he has the burden of proving not only that a majority of the employees in the appropriate unit signed cards designating the Union as bargaining representative, but also that the employer in bad faith declined to recognize and bargain with the Union. This is usually based on evidence indicating that respondent has completely rejected the collective-bargain principle or seeks merely to gain time within which to undermine the Union and dissipate its majority.” (Citing Joy Silk Mills, 85 NLRB, 1263, enfd. 87 U.S.App.D.C. 360, 185 F.2d 732). In such a situation, the Board’s order requiring an employer to bargain with a union will not be enforced if there is no substantial evidence on the record as a whole to establish that the employer in bad faith refused to recognize and bargain with the union. N.L.R.B. v. Great Atlantic & Pacific Tea Co., 346 F.2d 936 (C.A.5); Fort Smith Broadcasting Co. v. N.L.R.B., 341 F.2d 874 (C.A.8); Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754 (C.A.2). The ultimate finding of the trial examiner in the present case was that petitioners “in refusing to bargain, were not motivated by a good faith doubt regarding the Union’s majority. On the contrary, I find that they declined to recognize and bargain with the union because they sought to avoid their statutory obligation.” We hold that this finding is not supported by substantial evidence in the record considered as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The evidence shows that Mr. Feldtmann was of the impression that the Mine Workers was seeking to organize the plant. Although he expressed animus against any union and clearly was guilty of Section 8(a) (1) violations, there is no showing that he was aware or had an opportunity to become aware of the fact that a substantial number of the employees had signed the Stone Workers authorization cards. Copies of the cards were not proffered to him. The letter of Mr. Etchison dated August 21, 1964, claimed a majority only in" }, { "docid": "11994718", "title": "", "text": "SIMPSON, Circuit Judge: This action is before the Court upon the petition of Independent, Incorporated, to review and set aside an order of the National Labor Relations Board issued against the company on June 14, 1967. The Board has cross-petitioned for enforcement of its order, 165 NLRB 53. The Board found that the company had engaged in various activities viola-tive of Section 8(a) (1) of the National Labor Relations Act and ordered the company to cease these unfair labor practices. In addition, the Board found that the Union (International Typographical Union, AFL-CIO, Local No. 832) represented a majority of the employees in an appropriate bargaining unit and that the company’s refusal to bargain with the Union was not in good faith, thus violating Section 8(a) (5) of the Act. The Board set aside the results of an election held February 10, 1965, which the Union lost and ordered the company to bargain with the Union upon request. The company argues that there is not substantial evidence to justify the Board’s finding of 8(a) (1) violations and that the Board acted improperly in setting aside the election. The company asserts that its refusal to bargain was in good faith and that in any event the Union’s request to bargain was ambiguous as to unit description. Finally, the company believes that the Board selected an inappropriate bargaining unit. We may easily dispose of the controversy over the unfair labor practices found. There is more than substantial evidence in the record to justify the Board’s finding. Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Without recounting all the details, it is sufficient to observe that the record shows that Richard D’Aquin, the manager of petitioner’s newspaper (The Daily Advertiser of Lafayette, Louisiana), embarked upon an obvious course of anti-union conduct in October of 1964, about a month after the Union had begun an organizational drive. There is testimony that D’Aquin promised several employes raises, guaranteed job security and improved fringe benefits if they would not cooperate with the Union. D’Aquin asked two employees to let him know" }, { "docid": "920225", "title": "", "text": "to compromise but to no avail. The Company refused to agree to any form of union security or hiring hall proposed and refused to make counterproposals. The Marine Cooks filed three unfair-labor-practice charges during this bargaining period. The last, on May 9, alleged failure to bargain in good faith. On May 25, the union called an unfair-labor-practice strike. In late July and August the Marine Cooks made three unconditional offers to return to work. The Company eventually responded that it viewed the strike as an economic strike and therefore would not reinstate permanently replaced strikers. This refusal led to a further unfair-labor-practice allegation. The charges were consolidated for trial in 1974. The administrative law judge issued findings and a proposed order, which, with one member dissenting, the Board adopted on July 30, 1975. II. THE REFUSAL TO BARGAIN IN GOOD FAITH In our review, we must affirm the Board’s decision on the facts if it is supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The key question in this case is whether the totality of the Company conduct evidenced an intent to frustrate meaningful bargaining and thereby violated § 8(a)(5) of the Act. The Board concluded that it did. If this conclusion withstands review, the Board’s characterization of the ensuing strike as an unfair-labor-practice strike is also sound and the portions of the Board’s order requiring further collective bargaining and reinstatement of the strikers with back pay must be enforced. The question whether an employer’s conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining often forces the trier to draw difficult inferences from conduct to motivation. Since the accuracy of such inferences depends in part on an understanding of the collective-bargaining process, “the Board has been afforded flexibility to determine * * * whether a party’s conduct at the bargaining table evidences a real desire to come into agreement.” NLRB v. Insurance Agents Union, 361 U.S. 477, 498, 80 S.Ct. 419,432,4 L.Ed.2d 454 (1960). “Findings as to" }, { "docid": "11662489", "title": "", "text": "that it did not.” American Cyanamid Co., 129 N.L.R.B. 683, 684 (1960). We recognize that Kroger did not in this case seek any intermediate position. But neither was it requested to do so. Where the union has sought considerably more information than is required for or is relevant to its collective bargaining purposes, and where in fact collective bargaining has been in progress since 1943 with no unresolved grievances or contract disputes, it seems something of a contradiction in terms to find the company guilty of refusing to bargain in good faith by its refusal to disclose the total O.R. program. ■ We have considered whether or not we should simply modify the Board’s order now, so as to eliminate its excessive breadth. Doubtless this course would tend to eliminate some possible future litigation. But to do so would require us to accept the Board’s finding that petitioner had violated the law by refusing to bargain collectively. This seems somewhat illogical against a background which includes 1) an undisputed meaningful collective bargaining relationship between this company and this union since 1943; 2) a union request for information which we have held to be considerably broader than the law requires be furnished; 3) a collective bargaining relationship in which the company has not relied upon the O.R. program to deny benefits or refuse to adjust grievances ; and 4) a collective bargaining relationship which did not present in this record any pending negotiations . or • pending unsettled grievances to which f the request for information was related. With all of these factors taken into account, we believe that the Board order should be set aside and its enforcement should be denied because there is not substantial evidence to support the Board’s finding of a violation of sections 8(a) (1) and (5). Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our order and opinion is not to be read as in anywise prejudicial to a future request by this union for the Kroger Co. to furnish the union or its agents reasonable information with" }, { "docid": "3354230", "title": "", "text": "positions.” The Board further found that the changes announced on December 4 were reasonably comprehended within the Company’s prior proposals. Its order dismissed the complaint. II In this review proceeding the Union asserts that the Company’s unilateral changes in working conditions violated Sections 8(a) (1) and (5) of the Act. It attacks the Board’s conclusion that there was an impasse and it argues alternatively that the changes were impermissible with or without impasse. 1. We begin by noting the deference a court gives to a Board finding of impasse. See Dallas General Drivers etc. v. NLRB, 122 U.S.App.D.C. 417, 419-420, 355 F.2d 842, 844-845 (1966): [I]n the whole complex of industrial relations few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a board which deals constantly with such problems. This court’s function is limited to considering whether in the record as a whole there is to be found substantial evidence supporting the Board’s finding of impasse. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We think there is substantial evidence supporting the Board’s finding that as of December 4, 1965, there was a deadlock following a lengthy period of good faith bargaining. As the evidentiary facts set out above make clear, minor advances toward agreement were being made all along. But on what the Company considered the critical issue the Union had not budged, and on December 4 it showed no prospect whatever of budging in the future. There were a number of evidentiary indicators of impasse, as Part I of this opinion makes clear, to support the Board’s finding. One of these was the fact that the parties had been split up by the mediator — a material indicator of impasse, though not conclusive. Our conclusion that the Board’s finding must be sustained is not offset even though, as we are prepared to assume, the case was close on the facts and the record also contained evidence substantial enough to support a finding like that of the Examiner. Because" }, { "docid": "2002874", "title": "", "text": "reinstate four of the striking employees, the company violated § 8(a)(1) and (3) of the Act. Regarding the cost-of-living adjustment, the ALJ concluded that the company did not violate the Act by discontinuing payments, reasoning that to obligate the company to continue the adjustments would be, in effect, an improper writing of the contract for the parties. On review, the Board summarily affirmed the rulings, findings, and conclusions of the ALJ on the bargaining and reinstatement issues. The Board reversed, however, on the COLA issue, noting that a COLA survives the expiration of a collective bargaining agreement and cannot be altered without bargaining. The discontinuation of the payments, therefore, violated § 8(a)(1) and (5) of the Act. II. The company contends in its petition for review that the Board erred both in finding that it engaged in bad faith bargaining during the course of negotiations, and in determining that the two day strike was a demonstration against unfair labor practices. Our scope of review is limited; the Board’s decision is to be upheld if its factual findings are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir.1983). The company further contends that the Board erred in holding that the cost-of-living provisions were terms and conditions of employment surviving expiration of the contract. As this issue requires us to interpret and apply legal precepts and to interpret the expired contract, our review is plenary. Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). Whether the company engaged in bad faith bargaining requires separate consideration of its conduct both prior to and following the strike. Therefore, we proceed by addressing first whether the company engaged in bad faith bargaining during negotiations prior to the strike; second, whether" }, { "docid": "8776883", "title": "", "text": "violations of Sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. Sec. 158(a)(1) and (5). The Board issued a complaint against the Company on May 16, 1986. Biekerstaff’s answer denied any violations of the Act claiming that on the critical date (1) the Union was not representative of a majority of bargaining unit and (2) the Company entertained a reasonable good faith doubt of the Union’s majority status. Administrative Law Judge Par gen Robertson (“the ALJ”) heard the case on July 16, 1986. In his December 15, 1986 decision, the AU rejected the defenses of Bicker-staff and found the Company to be in violation of the Act. Thereafter, Bickerstaff filed exceptions to the decision with the Board. The issue before the Board was whether there were sufficient objective indications to enable the Company to entertain a reasonable, good faith doubt that the Union represented the majority of its employees at the time the Company withdrew recognition. On September 30,1987, the Board ruled that it did not and affirmed the ALJ’s decision that Bickerstaff violated the Act by withdrawing recognition from the Union on April 9, 1986; by refusing to sign a collective-bargaining agreement with the Union; and by refusing to provide the Union with bargaining unit information. Bickerstaff filed a timely petition in this court to review and set aside the Board’s decision. The Board then filed its cross appeal for enforcement. This court has jurisdiction pursuant to 29 U.S.C. Sec. 160(e) and (f). STANDARD OF REVIEW In reviewing an order issued by the NLRB, the courts must accept the Board’s findings of fact, “if supported by substantial evidence on the record considered as a whole ...” 29 U.S.C. Sec. 160(e). This general standard of review, however, eludes precise definition. As interpreted by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), “[sjubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 477, 71 S.Ct. at 459. In searching “the whole record” for" }, { "docid": "22861183", "title": "", "text": "Regional Director issued a consolidated complaint charging that Penntech, T.P. and Kennebec (the companies), as a single employer, violated section 8(a)(5) and (1) of the Act by failing and refusing to bargain in good faith with the unions regarding the effects of the companies’ decision to close the Ken-nebec mill. The case was tried before an administrative law judge (ALJ) at a seven-day hearing. On January 21, 1981, the ALJ issued his decision and remedial order finding the companies to be a single employer and guilty of refusing to bargain in good faith with the unions over the effects of the mill closing. On August 9, 1982, a three member panel of the Board affirmed the ALJ’s findings, conclusions and order, with some minor modifications. 263 N.L.R.B. No. 33. This petition for review and cross-application for enforcement followed. II Standard of Review The court must enforce the Board’s order if the Board correctly applied the law and if the Board’s findings of fact are supported by substantial evidence on the record viewed as a whole. NLRB v. Cable Vision, Inc., 660 F.2d 1, 3 (1st Cir.1981); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981); 29 U.S.C. § 160(e) (1976). As interpreted by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), “ ‘[substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. at 477, 71 S.Ct. at 459. In searching the entire record for substantial evidence, a reviewing court “must take into account whatever in the record fairly detracts” from the Board’s fact finding as well as evidence that supports it. Id. at 487-88, 71 S.Ct. at 463-65. The court may not substitute its judgment for that of the Board when the choice is “between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” and must defer to the Board’s inferences in the Board’s" }, { "docid": "12822485", "title": "", "text": "proceedings and the company offered no good reasons for its flat refusal to allow the dues collection on its premises. Compare Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); N. L. R. B. v. Walton Manufacturing Company, 5 Cir., 289 F.2d 177 (1961). WILBUR K. MILLER, Senior Circuit Judge, dissenting in No. 19,507: It is my view that the Labor Board’s decision, here under review, is not supported by substantial evidence when the record is considered as a whole in the manner described and prescribed by Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Consequently, I cannot agree with my brothers of the majority when they say in their opinion: “ * * * Our study of the record, however, convinces us that the Board’s findings are supported by substantial evidence on the record considered as a whole, and that the company’s adamant refusal to consider a union dues checkoff for those employees who individually requested it did indeed frustrate the bargaining.” The union was just as adamant in refusing to sign a contract which did not contain a checkoff clause or some other means of company aid in collecting union dues. Its representative informed the Company’s negotiator of this firm purpose, and counsel for the Board’s General Counsel (the charging party) told the examiner that his inquiry showed the union would not sign a contract without a checkoff. Thus, the union never intended to bargain on that issue; it simply stated it must have a dues collection provision or there would be no contract. In these circumstances, it is difficult for me to understand how it can be said that the Porter Company’s position on the checkoff issue “did indeed frustrate the bargaining.” Because of the union’s attitude on the issue — its stated determination not to negotiate in good faith with respect to it — bargaining as to a checkoff provision was impossible from the beginning. Yet it is the Company, not the union, which has been found" }, { "docid": "10078816", "title": "", "text": "does not establish the union’s majority. This fact wholly undermines the Board’s conclusion, based on the absence of good faith, that the company’s refusal was unlawful. As was said in NLRB v. S. E. Nichols Co., 380 F.2d 438, 442 (2 Cir. June 21, 1967), “[L]ack of good faith doubt is immaterial if in fact no majority existed.” In accord is NLRB v. Koehler, 328 F.2d 770, 773 (7 Cir. 1964). In conclusion, it is not amiss to note that the Board itself has expressed distrust in cards. NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2 Cir. 1965). Our Chief Judge Haynsworth has recently quite forcefully demonstrated the unreliability of cards, and soundly inveighed against their unqualified acceptance as the basis of a bargaining order. NLRB v. S. S. Logan Packing Company, No. 10,-355 Decided October 27, 1967). Having inspected the full record, we are not convinced that the Board's finding has the backing of substantial evidence. There is far too much doubt about the employees’ understanding of the cards to permit the conclusion that substantial evidence allows acceptance of the cards for what the union claimed for them. Consequently, we cannot hold that Crawford was required to recognize the union as a qualified demandant to bargain. As the Supreme Court has said: “Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. NLRB, supra, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The order of the Board will be enforced insofar as it seeks to correct the Section 8(a) (1) violations; it will not be enforced in respect to the reparations for the alleged 8(a) (3), violations; and it will not be enforced to compel Crawford to bargain 8(a) (5). Enforcement granted in part and denied in part. . Jurisdiction here rests on the fact that" }, { "docid": "2002875", "title": "", "text": "factual findings are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 537 (3d Cir.1983). The company further contends that the Board erred in holding that the cost-of-living provisions were terms and conditions of employment surviving expiration of the contract. As this issue requires us to interpret and apply legal precepts and to interpret the expired contract, our review is plenary. Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). Whether the company engaged in bad faith bargaining requires separate consideration of its conduct both prior to and following the strike. Therefore, we proceed by addressing first whether the company engaged in bad faith bargaining during negotiations prior to the strike; second, whether substantial evidence supports the finding of an unfair labor practice strike; and third, whether the company engaged in unfair labor practices following the strike. We then consider whether the company violated the Act by discontinuing the cost-of-living adjustments. III. Section 8(a)(5) of the National Labor Relations Act makes it an unfair labor practice for an employer to refuse to bargain collectively with its employees’ representatives. Section 8(d), which defines collective bargaining, provides: [T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession. The Board held that, prior to the November strike, the company engaged in bad faith" }, { "docid": "7277583", "title": "", "text": "the Company committed four major violations of the National Labor Relations Act. Specifically, the Board found: first, that the Company violated § 8(a)(5) by refusing to provide requested information to the' Union; second, that the Company violated § 8(a)(5) by unilaterally changing company health benefits and wage rates; third, that the Company violated § 8(a)(5) by refusing to bargain in good faith; and fourth, that the Company violated § 8(a)(1) by informing its employees of the futility of Union representation, by soliciting employees to directly meet with company management, by informing employees that they could earn more money without Union representation, by making profane statements about the employees’ Union hats, and by restricting employee travel to prevent Union activity at other company facilities. We review appeals from the National Labor Relations Board with deference and will affirm a Board order or grant a petition to enforce an order if the Board has correctly applied the law and, on the record as a whole, there is sufficient evidence to support the order and findings. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Wright Elec., Inc. v. NLRB, 200 F.3d 1162, 1166 (8th Cir.2000). We consider Hardesty’s violations of the National Labor Relations Act in turn. I. Company’s § 8(a)(5) Violations— Refusing to Provide Information Hardesty alleges that the Board erred when it found that the Company violated § 8(a)(5) by refusing to provide information regarding the wage rate of a driver it recently promoted to a supervisory position and for refusing to provide a list of applicants for a truck-driver position it declined to fill with a Union member. We disagree. When requested, an employer must provide a union with information that is necessary and relevant to the union’s role as the employees’ collective bargaining representative. See NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). In NLRB v. Acme Industrial, the Supreme Court observed that the relevance of information to a union’s role as the employees’ collective bargaining representative was to be determined on" } ]

[ { "docid": "8663344", "title": "", "text": "five-year delay was constitutionally permissible). “[I]nvestigative delay” is a valid reason for delay. United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Even when the government cites its own court filings rather than offering “sworn testimony on the investigative reasons for the delay,” we may accept the government’s representations about the reason for delay. Rogers, 118 F.3d at 476. Thomas asks us to “infer” intent, noting that, “[a]t minimum, the delay was reckless” because the government had gathered all evidence relevant to the indict ment by early 2006. Appellant Br. at 17. The government, however, has proffered valid reasons for delay that relate to the ongoing investigation. For example, at Thomas’s instigation, the government explored the possibility of pretrial diversion. Next, it produced evidence in hopes of convincing Thomas to accept a pre-indictment plea agreement. Finally, it secured Dumas’s cooperation and spent several months corroborating his story. Thomas has not explained why these reasons are improper. Because Thomas has shown neither prejudice nor the government’s intent tactically to delay, the pre-indictment delay here did not violate the Fifth Amendment. B. Sufficiency of the Evidence We review de novo the denial of a Rule 29 motion for a judgment of acquittal. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). In exercising our review, we “examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. “[W]e are bound to make all reasonable inferences and credibility choices in support of the verdict.” Id. “[C]ircumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.” United States v. Goosby, 523 F.3d 632, 637 (6th Cir.2008) (internal quotation marks omitted). In Thomas’s case, the evidence supported his convictions for conspiracy to defraud the federal government and all counts of mail fraud. 1. Conspiracy to Defraud the United States The elements of conspiracy to defraud the federal government are “(1) an agreement to accomplish" } ]

[ { "docid": "3089402", "title": "", "text": "that the government deliberately caused the delay for tactical gain: [ T]he Fifth Amendment [due process guarantee] requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. Id. (emphasis added); see also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (“[T]he [Due Process Clause] would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this ease caused substantial prejudice to appellees’ right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” (emphasis added)); cf. United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977) (“[investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused.’” (quoting Marion, 404 U.S. at 324, 92 S.Ct. at 465)); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988) (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”). On the authority of Gouveia, Marion, Lovasco, and Youngblood, every circuit, other than our own and the Ninth Circuit, has indeed held that, in order to establish that a lengthy pre-indictment delay rises to the level of a due process violation, a defendant must show not only actual substantial prejudice, but also that “the government intentionally delayed the indictment to gain an unfair tactical advantage or for other bad faith motives.” United States v. Crooks, 766 F.2d 7, 11 (1st Cir.) (Breyer, J.) (internal quotation marks omitted), cert. denied, 474 U.S. 996, 106 S.Ct. 421, 88 L.Ed.2d 362 (1985); see also, e.g., United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.), cert. denied, 484 U.S. 843, 108" }, { "docid": "23704382", "title": "", "text": "of due process based on excessive pre-indictment delay Rubin bears the heavy burden, for the reasons stated by the Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage. 431 U.S. at 790, 795, 97 S.Ct. 2044. The statute of limitations still provides “the primary guarantee against bringing overly stale criminal charges,” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971); see also United States v. Eucker, 532 F.2d 249, 255 (2d Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). No such showing has been made here. After a thorough hearing Judge Motley found that the delay had not been “due to any [Government] attempt to gain a tactical advantage” and that Rubin had failed to demonstrate actual prejudice. We find no grounds for disturbing these findings. The pre-indictment delay was justified in large measure for several reasons, including the complexity of the evidence, the pendency of an extensive investigation into tax evasion charges, which then had to be dropped for venue reasons, and the resulting interviews of many witnesses from different parts of the country, coupled with an analysis of voluminous financial records, which led to the indictment on non-tax counts. The prosecutor was justified in not seeking the indictment until she was convinced that there would be sufficient evidence to prove guilt beyond a reasonable doubt. Moreover, prior to indictment the prospective defendant suffers no restraint on his liberty. In any event our review of the record fails to reveal any actual prejudice of the type that is legally cognizable. Faded recollections and missing peripheral witnesses are not enough, United States v. Vispi, 545 F.2d 328, 331-332 (2d Cir. 1976). We have examined each of the other points raised by Rubin and find them to" }, { "docid": "5596659", "title": "", "text": "test set forth in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Ohio Supreme Court held that “unjustifiable delay between the commission of an offense and a defendant’s indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process.” 472 N.E.2d at 1099 (syllabus). Delay in commencing prosecution is unjustifiable when the state uses delay to gain a tactical advantage over the defendant, or through negligence or error ceases to investigate, and later, without new evidence, decides to prosecute. Luck, 472 N.E.2d at 1105. The district court rejected this claim on the merits, reasoning as follows: While the acceptability of a pre-indictment delay is generally measured by the applicable statute of limitations, the Fifth Amendment also imposes due process restraints on the length of a pre-indictment delay. See United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986). In assessing claims of pre-indictment delay, this court applies the two-part test set forth in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). See United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992). A defendant must demonstrate that (1) he suffered substantial prejudice to his right to a fair trial as a result of the delay; and (2) the government purposely delayed in order to gain a tactical advan tage over the defendant. See Brown, 959 F.2d at 66. In the present case, even if the Court assumes arguendo that petition[er] was prejudiced by the delay, petitioner cannot demonstrate that the prosecution purposely delayed in order to gain a tactical advantage over the defendant. Petitioner was not identified as the perpetrator until 1993. No evidence has been presented that would indicate that petitioner could have been identified sooner. Petitioner’s appellate counsel was not ineffective for failing to raise on direct appeal assignments of error relating to trial counsel’s failure to seek dismissal of the indictment based on the statute of limitations and pre-trial delay. Petitioner" }, { "docid": "15818965", "title": "", "text": "found in the due process clause of the fifth amendment. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). That protection is limited. The passage of a long period of time between knowledge by the prosecution of indictable conduct and an indictment is not enough, even if the delay was harmful to a defendant. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Rather, the defendants must show that the government intentionally delayed the indictment to gain a tactical advantage, and that the delay caused them actual and substantial prejudice. United States v. Ballard, 779 F.2d 287, 293 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). Carlock, Sr.’s and Scimemi’s only assertion of harm from pre-indictment delay at trial was that they were “unable to properly prepare a defense.” This argument was properly rejected for failure to even allege actual prejudice and intentional delay by the government. Defendants for the first time in their appellate brief attempt to identify prejudice. We refuse to entertain allegations of prejudice made for the first time on appeal. Regardless, there is no hint below or here that any delay was intentional and to gain a tactical advantage. Laird in turn argues that pre-indictment delay hindered his ability to defend Counts 31-34 and Racketeering Act 26, which allege extortion of Mar-Len on behalf of CAFI. However, Laird also failed to raise this issue below and we similarly refuse to entertain arguments first made on appeal. IV Carlock, Sr., argues without citation that the judge incorrectly refused to require a bill of particulars and that the indictment was improperly enlarged by the admission of evidence of racketeering acts not alleged. He also challenges the broad indictment under RICO as unconstitutional because it did not provide adequate notice of the charges against him and because it allowed evidence of prior bad conduct to support a present conviction. A The purpose of a bill of particulars is to provide sufficient notice of a charge for its defense and" }, { "docid": "9870238", "title": "", "text": "Watkins was not returned until August of 1981, some sixteen months later. On that basis Watkins filed a pretrial motion to dismiss the indictment; the motion alleged that Watkins’ ability to formulate a defense had been prejudiced by the government’s delay in bringing the indictment. Watkins now urges that the district court improperly denied his motion to dismiss. Although statutes of limitations provide the primary protection against the bringing of stale criminal charges, United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752 (1977), the due process clause “has a limited role to play in protecting against oppressive delay.” Id. at 789, 97 S.Ct. at 2048. The due process inquiry requires consideration of both the reasons for the government’s delay and the proof of prejudice to the accused. A pre-in-dictment delay will not violate due process unless the defendant is able to prove that the delay caused actual and substantial prejudice to his or her fair trial rights and that the government delayed indictment for tactical advantage or some other impermissible reason. See Lovasco, 431 U.S. at 788-96, 97 S.Ct. at 2047-2051; United States v. Ricketson, 498 F.2d 367, 370-71 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States v. DeTienne, 468 F.2d 151, 156 (7th Cir.1972), cert. denied, 410 U.S. 911, 93 S.Ct. 977, 35 L.Ed.2d 274 (1973). Watkins has failed to make such a showing. His motion before the trial court alleged no specific prejudice; rather, it contained a general assertion that the mere passage of time prevented Watkins from credibly reconstructing the events of April 24, 1980. Furthermore, Watkins failed even to allege an improper government motive for the pre-indictment delay. Thus, the district court properly denied Watkins’ pretrial motion to dismiss the indictment. C. The Cross-Examination Claim Watkins urges that reversible error was committed when the government was allowed to cross-examine Watkins about his relationship with Jerry Alexander. In addition, Watkins contends that the government should not have been allowed to use Watkins’ denial of a friendship with Alexander in arguing to the jury." }, { "docid": "23502443", "title": "", "text": "478 F.Supp. 535, 543 (M.D.Tenn. 1979) (stating that the second prong of the Marion test may be satisfied where preindictment delay was in “reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense”). However, it is firmly established that the defendant must show that “the government purposely delayed in order to gain a tactical advantage over the defendant.” United States v. Lash, 937 F.2d 1077, 1088 (6th Cir.1991), cert. denied, 502 U.S. 949, 112 S.Ct. 397, 116 L.Ed.2d 347 (1991), and cert. denied, 502 U.S. 1061, 112 S.Ct. 943, 117 L.Ed.2d 113 (1992); see also United States v. Duncan, 763 F.2d 220, 222 (6th Cir.1985); Brown, 959 F.2d at 66. The Assistant United States Attorneys representing the government in this case have flatly denied, under oath, that they knew that Miller was seriously ill. J.A. at 305, 422. Moreover, the government asserts that the development of a thorough and fan-investigation and the complexity of the case caused the delay in obtaining the indictment. In support of this argument, the government cites its response to Rogers’s motion to dismiss. J.A. at 55. The government does not present sworn testimony on the investigative reasons for the delay, nor does it describe even in a general way what investigation occurred during the two-year period between the last FBI interview of Rogers and the return of the indictment. Nonetheless, the Supreme Court has accepted such representations from counsel in this context. See Lovasco, 431 U.S. at 796, 97 S.Ct. at 2051-52 (expressing a willingness to assume that counsel’s representations that the delay was caused by the government’s efforts to identify additional persons who may have partid pated in the offenses were made in good faith). But see id. at 799, 97 S.Ct. at 2053 (Stevens, J., dissenting) (criticizing the majority’s finding a continuing investigation based on statements counsel made during the appellate process because unsworn statements that were not part of the record could not have been considered by the trial court). Because Rogers failed to establish each" }, { "docid": "22922529", "title": "", "text": "of due process based on excessive pre-indictment delay [a defendant] bears the heavy burden ... of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage.” Id. (citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)); see also United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.) (defendant “failed to show either actual prejudice or unjustifiable governmental conduct, such as deliberate delay to achieve a substantial tactical advantage”), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984). No such showing has been made here. Catanzano provides no specific allegation of misconduct on the part of the prosecution, relying instead on an “unavoidable deduction” of deliberate delay. In response, the government provides specific, convincing reasons why the prosecution was not ready to try this case until the spring of 1988. See Grady, 110 S.Ct. at 2090 n. 7. Accordingly, no basis for reversal is presented. E. Severance of Savarese. Savarese, whose motion for severance was denied at trial, claims error in that denial, invoking Fed.R.Crim.P. 14. Rule 14 provides in pertinent part: “If it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.” Savarese contends that his extortion charges were only a minor part of the trial, and that since most of the evidence presented, particularly regarding the marijuana and other narcotics trafficking, had nothing to with his case, severance should have been granted as to him. The decision whether to grant a severance, however, is “committed to the sound discretion of the trial judge.” United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989) (citing United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493," }, { "docid": "23363959", "title": "", "text": "and United States v. Revada, 574 F.2d 1047 (10th Cir.1978), and argues the court abused its discretion when it improperly denied his motion without even conducting an evidentiary hearing to resolve factual allegations. The offenses with which the defendant was charged occurred on January 6, 1991, and March 13, 1991, and the defendant was indicted on federal charges on January 9,1992. Muniz argues this delay in indictment was intentional because he lost contact with two witnesses he needed for his defense. The government explained the delay was due to the slow exchange of investigative reports between the state authorities who arrested Muniz and the federal agent handling the case. The district court was not required to hold an evidentiary hearing in order to rule on the pre-indictment delay allegation. As the Supreme Court recognized in United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977), “investigative delay is fundamentally unlike delay taken by the Government solely ‘to gain tactical advantage over the accused’ ” and does not deprive a defendant of due process. Id. Muniz made no specific allegations how the government had intentionally delayed seeking an indictment in order to prejudice the defendant. See Gutierrez v. Moriarty, 922 F.2d 1464, 1472 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991); United States v. Pino, 708 F.2d 523, 527 (10th Cir.1983). Nor did Muniz specifically allege why the passage of time caused him to lose contact with the two witnesses. See Gutierrez, 922 F.2d at 1472. In fact, one of the witnesses did appear at trial, and the other is his own brother. The government adequately explained the reason for the admittedly “modest delay” so that the district court could deny the motion after reviewing the memoranda submitted by both parties. The other ground for the defendant’s motion to dismiss was based upon a violation of his Sixth Amendment right to a speedy trial. Muniz argues his speedy trial right attached on January 6, 1991, and May 14, 1991, when he was first arrested for the offenses. The government" }, { "docid": "23502441", "title": "", "text": "the outcome of the trial. Such testimony would seem virtually implausible in light of Miller’s statement to the FBI that he did not participate in any of the conversations recorded, the number of tape recordings in which the conspirators discussed their collection procedures, the specificity of the proof regarding the profit to be made by selling the bank in Bowling Green, and Spurrier’s testimony that the conspirators planned to extort money from Wilkinson in exchange for their support on the Banking Bill. Therefore, we agree with the district court’s conclusion that Rogers did not show actual substantial prejudice. 2. Reason for the Delay Even if Rogers had established actual substantial prejudice, he failed to satisfy the second part of the test for unconstitutional pre-indictment delay: “that the delay was an intentional device by the government to gain a tactical advantage.” Brown, 959 F.2d at 66. It is well-established that a delay resulting from investigative efforts “does not deprive [a defendant] of due process, even if his defense may have been somewhat prejudiced by the lapse of time.” United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986) (citations omitted), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987); see also United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 2051-52, 52 L.Ed.2d 752 (1977) (holding that “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time”). Rogers argues that the government improperly delayed obtaining an indictment to gain a tactical advantage when it knew or should have known of Miller’s serious health problems. Rogers cites the testimony of Miller’s son, who stated that there were two newspaper articles about his father’s poor health when he withdrew from the race for county judge. J.A. at 297. Furthermore, Haddad testified that everybody knew Miller had health problems. J.A. at 210. Rogers asks this court to find that reckless or negligent disregard of a potentially prejudicial circumstance violates the Fifth Amendment guarantee of due process. See United States v. Richburg," }, { "docid": "15975413", "title": "", "text": "the statute of limitations. Nevertheless since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused____ However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Marion, supra, 404 U.S. at 324, 92 S.Ct. at 465 (emphasis added) (footnotes omitted). Thus, the Court indicated that a due process violation based on pre-indictment delay would have occurred if a showing of substantial prejudice had arisen out of a delay intentionally fostered to give the prosecution a tactical advantage. In Lovasco, however, the Supreme Court expressly declined, as it had declined in Marion, to identify the constitutional significance of the various reasons for delay. Lovasco, 431 U.S. at 797, 97 S.Ct. at 2052. Nevertheless, the Court also declined to promote a rule which would require prosecutors to bring an indictment immediately upon receipt of sufficient evidence. In this regard, the Court noted that delay occasioned by good faith investigation is fundamentally different from delay designed to gain tactical advantage. Id. at 795, 97 S.Ct. at 2051. While it is clear under Lovasco and Marion that a showing of substantial prejudice by the defendant is necessary to a successful pre-indictment delay due process challenge, the Supreme Court stopped short of expressly requiring any additional showing that the delay had arisen from a bad faith motivation by the state to gain tacti cal prosecutorial advantage. Nevertheless, Lovasco implied that something akin to an improper prosecutorial motive would ordinarily be required. In Lovasco, the court" }, { "docid": "21270768", "title": "", "text": "apply to pre-arrest delay, the Marion Court explained that “ ‘the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges.’ ” 404 U.S. at 322, 92 S.Ct. 455 (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (alteration in original)). Brown does not allege that the three-year delay before charges were brought against him violates the statute of limitations, which has a ten-year duration. See 18 U.S.C. § 3283. The Marion Court noted, however, “that the statute of limitations does not fully define [a person’s] rights with respect to the events occurring prior to indictment.” 404 U.S. at 324, 92 S.Ct. 455. The Court explained that due-process protections “would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Id. “Thus Manon makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). We have interpreted Marion and Lovasco to hold that both conditions (improper reasons for delay and prejudice) are necessary for a due-process violation. Sanders, 452 F.3d at 581 n. 6. When assessing whether these conditions are met, we are “to determine only whether the action complained of ... violates those fundamental conceptions of justice [that] lie at the base of our civil and political institutions, and [that] define the community’s sense of fair play and decency.” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (internal citations and quotation marks omitted); Sanders, 452 F.3d at 580. Brown fails to meet either condition. First, Brown offers no proof that the delay was a deliberate ploy by the Government to gain a tactical advantage. Brown merely states, without support," }, { "docid": "5790980", "title": "", "text": "More recently, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Court, in support of its holding that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law,” stated that: “Our decisions in related areas have stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), we said that ‘[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them.’ Id. at 325, 92 S.Ct., at 466; see also United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977).” Id. at 57, 109 S.Ct. at 337. A significant majority of our sister circuits appear to now follow the same rule, namely that where limitations has not run dismissal for preindictment delay requires a showing not only of substantial, actual prejudice, but also that the prosecutor intentionally delayed to gain tactical advantage or to advance some other improper purpose. See, e.g., United States v. Mills, 925 F.2d 455, 464 (D.C.Cir.1991), cert. denied, 506 U.S. 977, 113 S.Ct. 471, 121 L.Ed.2d 378 (1992) (“... pre-indictment delay ... offends due process if the defendant can carry the burden of showing (1) that the government delayed bringing the indictment in order to gain a tactical advantage; and (2) that the delay caused him actual and substantial prejudice”); United States v. Crooks, 766 F.2d 7, 11 (1st Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 421, 88 L.Ed.2d 362 (1985) (“An indictment brought within an applicable statute of limitations period is, constitutionally speaking, late only if the delay significantly prejudices the defendant and the government ‘intentionally delayed’ the indictment ‘to gain an unfair tactical advantage" }, { "docid": "23363958", "title": "", "text": "testified in his own defense concerning both counts and can not claim any infringement of his Fifth Amendment right not to testify. Hernandez, 829 F.2d at 991; Dickey, 736 F.2d at 590. There was no unfair prejudice from proof that he was a convicted felon since it was an element for both counts. See United States v. Valentine, 706 F.2d 282, 290 (10th Cir.1983). Moreover, the case for each count was strong enough on its own. The government was not attempting to strengthen a weak case by joining it with a strong case. Muniz’s prejudice argument is not helped by the fact that the jury acquitted him on one of the counts. C. Pre-Indictment and Post-Indictment Delay Muniz moved to dismiss the indictment prior to trial alleging his due process rights to be free of prejudicial preindictment delay were violated along with his Sixth Amendment right to a speedy trial. The government opposed the motion which the district court denied on May 6, 1992. Muniz relies upon United States v. Stoddart, 574 F.2d 1050 (1978), and United States v. Revada, 574 F.2d 1047 (10th Cir.1978), and argues the court abused its discretion when it improperly denied his motion without even conducting an evidentiary hearing to resolve factual allegations. The offenses with which the defendant was charged occurred on January 6, 1991, and March 13, 1991, and the defendant was indicted on federal charges on January 9,1992. Muniz argues this delay in indictment was intentional because he lost contact with two witnesses he needed for his defense. The government explained the delay was due to the slow exchange of investigative reports between the state authorities who arrested Muniz and the federal agent handling the case. The district court was not required to hold an evidentiary hearing in order to rule on the pre-indictment delay allegation. As the Supreme Court recognized in United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977), “investigative delay is fundamentally unlike delay taken by the Government solely ‘to gain tactical advantage over the accused’ ” and does not deprive a" }, { "docid": "12831870", "title": "", "text": "offenses charged in the superseding indictment and returned a special verdict against defendant on the forfeiture count. Following his sentencing, defendant appealed. Discussion Defendant’s sole argument on appeal is that the district court erred in failing to dismiss the superseding indictment on the basis of preindictment delay in violation of his rights under the Due Process Clause. Defendant maintains that he did not waive the right to raise this issue on appeal by failing to reassert it in a post-trial motion because, following a trial, “[t]he district court is free to reevaluate whether the delay has caused [the defendant] such prejudice as to impair the fairness of the trial.” United States v. Bartlett, 794 F.2d 1285, 1294 (8th Cir.), cert. denied, 479 U.S. 934, 107 S.Ct. 409, 93 L.Ed.2d 361 (1986). “To show preindictment delay violated the Due Process Clause, a defendant must first show the delay actually and substantially prejudiced the defendant. If the defendant establishes actual, substantial prejudice, then the court balances the reasons for the delay against the prejudice shown.” United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir.1998) (citing Bennett v. Lockhart, 39 F.3d 848, 851(8th Cir.1994), cert. denied, 514 U.S. 1018, 115 S.Ct. 1363, 131 L.Ed.2d 219 (1995), and United States v. Bartlett, 794 F.2d at 1289). If actual and substantial prejudice has been demonstrated, the government may be required to show that the delay was for investigative purposes or some other legitimate reason. See, e.g., United States v. Lovasco, 431 U.S. 783, 795-96, 97 S.Ct. 2044, 2051-52, 52 L.Ed.2d 752 (1977) (“In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused’---- [T]o prosecute a defendant following investigative delay does not deprive him [or her] of due process, even if his [or her] defense might have been somewhat prejudiced by the lapse of time.”); United States v. Bartlett, 794 F.2d at 1293-94 & nn. 12-14 (commenting, in dictum, on the government’s justification for the delay and concluding “[w]e ... have difficulty finding in the government’s decision to delay indicting [the defendant] an appropriate" }, { "docid": "1468676", "title": "", "text": "delay in charging him violated due process. Parker asserts that the delay was unnecessarily long and that the State had no justification for it. Further, Parker asserts that the delay prevented him from presenting favorable witnesses. Although Parker invokes the Supreme Court’s decision in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), Parker also relies on Monzo v. Edwards, 281 F.3d 568 (6th Cir.2002). In Parker’s assessment, Monzo holds that delay in commencing prosecution is unjustifiable when, through negligence or error, the state ceases to investigate, and later, without new evidence, decides to prosecute. The State responds that (1) Parker caused much of the delay; (2) the delay failed to prejudice him; and (3) Parker’s citation to Monzo is inapposite. ■ In certain cases, the Due Process Clause protects against preindictment delay. The Due Process Clause “requires the dismissal of an indictment ... if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense.” United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (citing United State v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). In accordance with the Supreme Court’s rule, we have consistently held that “[dismissal for pre- ' indictment delay is warranted only when the defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an intentional device by the government to gain a tactical advantage.” Brown, 959 F.2d at 66 (alteration in original) (citations omitted) (internal quotation marks omitted). In this case, the Michigan Court of Appeals reasonably concluded that Parker failed to show that the State’s delay in charging him was an intentional device to gain a tactical advantage. Although there appears to be no justification for the delay, Parker has presented inadequate evidence of improper intent. Parker argues that one can infer" }, { "docid": "12831871", "title": "", "text": "v. McDougal, 133 F.3d 1110, 1113 (8th Cir.1998) (citing Bennett v. Lockhart, 39 F.3d 848, 851(8th Cir.1994), cert. denied, 514 U.S. 1018, 115 S.Ct. 1363, 131 L.Ed.2d 219 (1995), and United States v. Bartlett, 794 F.2d at 1289). If actual and substantial prejudice has been demonstrated, the government may be required to show that the delay was for investigative purposes or some other legitimate reason. See, e.g., United States v. Lovasco, 431 U.S. 783, 795-96, 97 S.Ct. 2044, 2051-52, 52 L.Ed.2d 752 (1977) (“In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused’---- [T]o prosecute a defendant following investigative delay does not deprive him [or her] of due process, even if his [or her] defense might have been somewhat prejudiced by the lapse of time.”); United States v. Bartlett, 794 F.2d at 1293-94 & nn. 12-14 (commenting, in dictum, on the government’s justification for the delay and concluding “[w]e ... have difficulty finding in the government’s decision to delay indicting [the defendant] an appropriate governmental interest”). Absent a showing that the government acted intentionally to harass or to gain a tactical advantage, no due pro- eess violation may be found. United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir.1994); see also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (noting “the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the preindictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused”). Defendant argues that he was actually and substantially prejudiced in this case because Formell died in February 1996, eight years after the events involving the Graeeville State Bank, but before defendant was ever indicted. According to defendant, Formell would have testified that, prior to defendant’s formal request for the $100,000 loan from the Graeeville State Bank, Formell and defendant had been alone together in" }, { "docid": "3991398", "title": "", "text": "the indictment which he was charged under was not issued until October 30, 1984. Two earlier indictments had been issued in November 1982 and January 1984, but were subsequently dismissed pursuant to the government’s request. The government claims that the January 1984 indictment was dismissed when coconspirator Benning decided to cooperate with the prosecution, providing the government with an opportunity to investigate the criminal conspiracy in more detail. Covington does not challenge this assertion; rather, he argues that the government arrested him on bogus charges of non-payment of child support in 1982 when the government’s intent was actually to investigate his involvement in this conspiracy. Although he provides no evidence to substantiate this claim, Covington asserts that the government was obligated to inform him of its investigation and to indict him at an earlier date. The concern over a lengthy delay in filing charges against a defendant is often focused on the staleness of those charges; for that reason, the acceptability of a pre-indictment delay is generally measured by the applicable statute of limitations. See United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). However, the Fifth Amendment also imposes due process restraints on the length of a pre-indictment delay. A showing of prejudice to the defendant, without more, is not enough to prove a due process violation; rather, there must also be a consideration of the reasons for the delay. United States v. Lovasco, 431 U.S. 783, 791, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1983). A pre-indictment delay which is instigated by the government so as “‘to gain tactical advantage over the accused’ ” may violate a defendant’s due process rights, id. at 795, 97 S.Ct. at 2051 (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)), whereas a delay resulting from investigative efforts “does not deprive [a defendant] of due process, even if his defense may have been somewhat prejudiced by the lapse of time.” Id. 431 U.S. at 796, 97 S.Ct. at 2052. See also United States v. Napue, 401 F.2d" }, { "docid": "22922528", "title": "", "text": "held that offenses to which the defendants in that case had pled guilty in a separate prosecution could be charged as predicate acts in a subsequent prosecution for a RICO offense continuing after the plea to the prior offense. See also Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (same rule as to separate prosecution for engaging in a continuing criminal enterprise extending beyond the plea to the prior offense in violation of 21 U.S.C. § 848). Catanzano does not challenge this rule, but contends that the government utilized it unfairly and manipulatively, deliberately delaying the instant prosecution while meanwhile securing the convictions of Catanzano and Granato for their (accordingly illegitimate) use herein. We disagree. As a general matter, a prosecutor is “justified in not seeking the indictment until ... convinced that there [will] be sufficient evidence to prove guilt beyond a reasonable doubt.” United States v. Rubin, 609 F.2d 51, 66 (2d Cir.1979), aff'd, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Moreover, “[t]o establish denial of due process based on excessive pre-indictment delay [a defendant] bears the heavy burden ... of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage.” Id. (citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)); see also United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.) (defendant “failed to show either actual prejudice or unjustifiable governmental conduct, such as deliberate delay to achieve a substantial tactical advantage”), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984). No such showing has been made here. Catanzano provides no specific allegation of misconduct on the part of the prosecution, relying instead on an “unavoidable deduction” of deliberate delay. In response, the government provides specific, convincing reasons why the prosecution was not ready to try this case until the spring of 1988. See Grady, 110" }, { "docid": "23370625", "title": "", "text": "was prejudiced. Beckett can make out a claim under the Due Process Clause only if he can show both (1) that the delay between the crime and the federal indictment actually prejudiced his defense; and (2) that the government deliberately delayed bringing the indictment in order to obtain an improper tactical advantage or to harass him. See United States v. Lovasco, 431 U.S. 783, 789-90, 795-96, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Ismaili, 828 F.2d 153, 168 (3d Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988). Beckett has not shown either actual prejudice or improper delay. He does not, for instance, claim that items of evidence or documents were lost, witnesses became unavailable, or that memories faded as the result of the six month delay. See United States v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (appellee failed to demonstrate that 38 month delay actually dimmed memories, made witnesses inaccessible, or caused evidence to be lost). Nor has he shown that the federal government delayed the indictment deliberately to harass him or to gain some improper advantage. The Due Process Clause does not require prosecutors to file charges as soon as probable cause exists, or even at the point where the government’s investigation, though incomplete, has assembled sufficient evidence to prove guilt beyond a reasonable doubt. See Lovasco, 431 U.S. at 791-95, 97 S.Ct. 2044. We see no evidence of improper delay while the federal government was building its case against Beckett regarding the robbery of the Home Unity Bank, an armed robbery not charged by the state authorities. H. Beckett challenges the sufficiency of the evidence against him regarding the charges of robbery and bank robbery, and believes that the District Court erred as a matter of law by allowing these verdicts to stand. We must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury’s decision. See United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992) (citing Burks v. United States, 437" }, { "docid": "9870237", "title": "", "text": "U.S. 427, 433, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1931). The indictment brought against Watkins, when read as a whole, was sufficient to charge Watkins with a violation of 18 U.S.C. § 641. The indictment returned by the grand jury contained two counts; the first count charged Watkins with unlawfully breaking into a United States Post Office with intent to commit larceny therein, while the second count charged Watkins with unlawfully disposing of federal government property obtained in the break-in. Any reasonable construction of this indictment suggests that the grand jury determined that Watkins knowingly disposed of the government calculator without authority. That the grand jury implicated Watkins in the theft of the calculator belies any possibility that the grand jury believed Watkins disposed of the calculator without knowledge that it was, in fact, government property. Accordingly, we reject Watkins claim that the indictment upon which he was convicted was fatally defective for failure to state a charge. B. Pre-indictment Delay Although the post office break-in occurred in April of 1980, the indictment against Watkins was not returned until August of 1981, some sixteen months later. On that basis Watkins filed a pretrial motion to dismiss the indictment; the motion alleged that Watkins’ ability to formulate a defense had been prejudiced by the government’s delay in bringing the indictment. Watkins now urges that the district court improperly denied his motion to dismiss. Although statutes of limitations provide the primary protection against the bringing of stale criminal charges, United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752 (1977), the due process clause “has a limited role to play in protecting against oppressive delay.” Id. at 789, 97 S.Ct. at 2048. The due process inquiry requires consideration of both the reasons for the government’s delay and the proof of prejudice to the accused. A pre-in-dictment delay will not violate due process unless the defendant is able to prove that the delay caused actual and substantial prejudice to his or her fair trial rights and that the government delayed indictment for tactical advantage or some other" } ]

[ { "docid": "13045050", "title": "", "text": "it would appear to follow, a fortiori, that an attorney is engaging in state action within the meaning of § 1983 when he brings and presses a suit which attributes state action to his client: it is the attorney who actually causes the existing state procedures to be implemented; it is both he and the person he represents who stand to gain monetarily from the use of such state procedures, and seemingly should be liable for money damages if substantial constitutional rights . are thereby violated. Cf: Tunheim v. Bowman, 366 F.Supp. 1395 (D.Nev.1973). Despite the foregoing, it is clear that as a general proposition, attorneys are held to be immune from civil liability under 42 U.S.C. § 1983, even if their clients are not. See, e. g., Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970); Kovacs v. Goodman, 383 F.Supp. 507 (E.D.Pa.1974) [cases from six circuits cited at note 1.]; Tunheim v. Bowman, supra. The Court recognizes that this principle of immunity is grounded upon critical social considerations, for, if an attorney must work in constant fear of civil liability, it is the rights of the public that will suffer. Any such threat of liability visits an obvious chilling effect upon the attorney’s enthusiasm to vigorously defend his client’s position. Tunheim v. Bowman, supra. The remedies guaranteed by the Civil Rights Act are not to be invoked so as to create a conflict between the attorney’s duties to protect himself and to zealously represent his client. Ehn v. Price, 372 F.Supp. 151 (N.D.Ill.1974). As a matter of public policy, the attorney must not be placed in a position where he is compelled to gamble on the outcome of a case, with his own personal liability hanging in the balance. Having articulated the general theory whereby private individuals are thought to be engaged in state action when suits are brought in their behalf pursuant to particular state statutes, and having investigated the nature and purpose of the attorney’s immunity in this regard there remains the task of" } ]

[ { "docid": "3309763", "title": "", "text": "507 (3d Cir. 1975). This court has found, however, that attorneys who choose to employ criminal process by initiating prosecution under the defrauding of innkeepers statute, where trial by private prosecutor is also available, are engaged in “state action” for purposes of section 1983, see part II.A, supra. The private attorney’s decision to employ criminal process extends his function beyond that of an advocate in a debt collection dispute between private parties; when the criminal arrest warrant issues some degree of detention of the private adversary will usually follow, regardless of the merits of the case. It is true that lawyers who are not also parties in interest and are engaged in private litigation on behalf of clients will not necessarily be subject to section 1983 liability even where their client’s adversary is committed to jail as a collateral result of the civil proceedings, see Jones v. Jones, 410 F.2d 365, 366 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970). The attorneys in Jones had obtained an order requiring their client’s ex-husband to make child support payments. The ex-husband refused to comply with the court order. His subsequent detention for civil contempt was caused by violation of a civil court order entered after a judicial hearing, and not by the unreviewed decision of a private attorney to initiate criminal proceedings. That rationale for private attorney immunity is confined to conduct of civil proceedings where the decision of a judicial officer is interposed prior to any deprivation of an opponent’s liberty interest. Thus Jones is inapposite to the instant case. Where attorneys engage in the criminal process, research discloses only one group which shares absolute immunity from civil liability equal to that of a public prosecutor, namely, the state-employed public defender. Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973). This extension of immunity was mandated by considerations of public policy protecting the exercise of professional discretion by attor neys serving in public offices in the criminal justice system. We do not" }, { "docid": "3309767", "title": "", "text": "outset. These considerations suggest the same result with respect to an attorney who is alleged to have knowingly and maliciously directed his client to initiate a groundless criminal prosecution. An attorney who represents his client in good faith will be immune from civil liability for malicious prosecution, because a necessary element of that tort would be absent. The common law recognizes immunity for an attorney who honestly, though mistakenly, advises his client to initiate criminal proceedings, Kassan v. Bledsoe, 252 Cal.App.2d 810, 60 Cal.Rptr. 799 (1967), or where an attorney relies in good faith upon his client’s statements, see Annot., 27 A.L.R.3d 1113, 1130 (1969). If an attorney knows, however, that his client acts with malice and without probable cause in filing a criminal complaint, or if the attorney’s own acts are taken with malice and without probable cause, the attorney will not be immune from civil liability where his conduct deprives his client’s adversary of liberty. United States General, Inc. v. Schroeder, supra; Annot., 27 A.L.R.3d 1113 (1969). We hold that, under the facts alleged in the complaint, a cause of action under section 1983 is stated against these attorneys for malicious prosecution, due to the allegations that the attorneys had actual knowledge of the true facts yet acted with malice in directing that a criminal complaint be filed. The motion to dismiss the complaint will be denied as to defendants Feinberg, Ginsburg, and their law firm. The accompanying Order will be entered. . The remaining defendants are officers of the Atlantic City, N. J., Police Department who allegedly arrested and/or attempted to coerce plaintiffs to pay the disputed hotel bill. These police officers have not joined in this motion to dismiss. . Haines v. Kemer, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed,2d 652 (1972); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). . (Deleted) . N.J.S.A. 2A: 111-19 (1969) provides: Any person who obtains credit or accommodation at any hotel, inn, boarding house or lodging house, by means of any false pretense, or who, with intent" }, { "docid": "3309779", "title": "", "text": "case. Imbler v. Pachtman, supra; Yaselli v. Goff, supra. . In Brown v. Joseph, supra, the Third Circuit wrote: We perceive no valid reason to extend this immunity to state and federal prosecutors and judges and to withhold it from state-appointed and state-subsidized defenders. Implicit in the extension of judicial immunity to prosecutors was the recognition of a public policy encouraging free exercise of professional discretion in the discharge of pre-trial, trial, and post-trial obligations. 463 F.2d at 1048. If the public defender were not immune, the office would suffer discouragement of recruitment and the chilling of independent decision-making, which would be unfair in view of their adversary’s prosecutorial immunity. Id. at 1049. . These policies were summarized in United States General, Inc. v. Schroeder, supra, 400 F.Supp. at 717, as follows: The Court recognizes that this principle of immunity is grounded upon critical social considerations, for, if an attorney must work in constant fear of civil liability, it is the rights of the public that will suffer. Any such threat of liability visits an obvious chilling effect upon the attorney’s enthusiasm to vigorously defend his client’s position. The remedies invoked by the Civil Rights Act are not to be invoked so as to create a conflict between the attorney’s duties to protect himself and to zealously represent his client. As a matter of public policy, the attorney must not be placed in a position where he is compelled to gamble on the outcome of a case, with his own personal liability hanging in the balance [citations omitted]. . The resort to criminal process to accomplish debt collection, recover property or to enforce some other civil claim may expose an attorney who acts maliciously and without probable cause to liability, Robinson v. Fimbel Door Co., 113 N.H. 348, 306 A.2d 768 (1973). There may also be attorney liability for maliciously instituting involuntary bankruptcy or receivership proceedings, Annot., 40 A.L.R.3d 296. Even the malicious initiation of civil proceedings against a debtor wrongfully thought to be delinquent may result in liability to an attorney having sufficient knowledge or interest in the wrongful" }, { "docid": "4130353", "title": "", "text": "their recommendations or other actions. Simineo v. School Dist. No. 16, Park Cty., Wyo., 594 F.2d 1353 (10th Cir. 1979); Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1976); Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), cert. denied 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212. Defendant William Pehr, the school district attorney, contends that he is immune from liability under § 1983. While it is true that prosecutors, public defenders and other attorneys are absolutely immune for their activities inextricably connected with the judicial process, a line has been drawn between the prosecutorial function and other functions of the attorney. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976), cert. denied 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977). Qualified immunity, rather than absolute immunity, was extended to a city attorney who gave advice in connection with the discharge of a public employee in Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970). The court emphasized that: The purpose of according judicial immunity is to protect the integrity of the judicial process. It is not to shield lawyers or judges from liability for the invasion of another’s federally secured constitutional rights, when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process. Donovan v. Reinbold, 433 F.2d at 743. Although plaintiff does not specify the acts of the attorney upon which his alleged liability is based, absolute immunity cannot be given to the defendant Pehr in the absence of evidence that his acts were inextricably involved in the judicial process. A complaint under the Civil Rights Act should not be dismissed unless it clearly appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976); Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975). Plaintiff has alleged that each defendant participated in his dismissal, with reckless disregard of his rights. As to" }, { "docid": "9845393", "title": "", "text": "were sought, but the officer was never informed that the attorney intended to take a stance adverse to the officer’s best interests. At trial, the attorney argued that the police officer was acting as an “irate husband” in assaulting the plaintiff, and not as an employee of the county. The court noted the conflict: [S]ince the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities can be held liable under section 1983 for employees’ actions taken pursuant to municipal policy. After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict. See Van Ooteghem v. Gray, 628 F.2d 488, 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982). A municipality may avoid liability by showing that the employee was not acting within the scope of his official duties, because his unofficial actions would not be pursuant to municipal policy. The employer, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties. If he can show that his actions were pursuant to an official policy, he can at least shift part of his liability to the municipality. If he is successful in asserting a good faith immunity defense, the municipality may be wholly liable because it cannot assert the good faith immunity of its employees as a defense to a section 1983 action. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). 729 F.2d at 907. The court found that the county attorney’s representation of the officer was inconsistent with the attorney’s professional obligation to his client as well as Canons 5 and 9 of the ABA Code of Professional Responsibility. Because the conflict was obvious, the Second Circuit held that the district court had a duty to ensure that the client fully appreciated his situation. Furthermore," }, { "docid": "10933706", "title": "", "text": "to mean that Dalton is liable because he transferred Plaintiff and D’Amico and Dickinson are liable because they acquiesced in Dalton’s decision. Nowhere else in the amended Complaint does Pollard allege that D’Amico and Dickinson actually removed Plaintiff from his mail driver position, but he does allege they acquiesced in Dalton’s decision. The Court’s interpretation avoids the inconsistency raised by the divergent allegations. . This ruling on Defendants’ motions to dismiss does not, of course, suggest the outcome of Pollard’s claims on summary judgment or at trial. Connick does more than imply that speech protected by the first amendment is not an absolute. See 103 S.Ct. at 1694 (discharge did not offend constitution where limited first amendment interest at issue did not require employer to tolerate action which would disrupt office, undermine authority and destroy close working relationship). Thus, a steadily mounting attack on a supervisor may reach an intolerable level of disruption so that an employee's first amendment interest is outweighed by a public employer’s interest. See Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1258-59 (CA7 1985) (employee’s tactics, even though they constituted speech on a matter of public concern, found so disruptive and \"conflict creating” that Pickering balance tipped in favor of employer). See also Knapp, 757 F.2d at 843-45 (discussing a plaintiffs Mt. Healthy burden). . Amended Complaint f 40 states \"Defendant Dalton violated Plaintiffs fourteenth amendment rights and 42 U.S.C. Sec. [sic] 1983 because his overall treatment of Plaintiff on the job was based in part on Plaintiffs race.” That allegation is indicative of the generality of Count II and the obscurity of the legal theory the Count is predicated upon. Nevertheless, because Defendants treat Count II as an equal protection claim'and Pollard does not disagree, the Court regards Count II as alleging a violation of equal protection. . For example, if City is right and the Count II equal protection claim is barred by Title VII, then it simply doesn’t matter whether Count II states a claim consistent with Rule 12(b)(6). City apparently disagrees because its preemption argument is raised as the very last argument" }, { "docid": "22357268", "title": "", "text": "Federal Bureau of Investigation Special Agent Roger White and Bringier’s former attorney, Thomas D’Amico. Both witnesses testified that Bringier entered into the immunity agreement described in the government’s letter which specifically stated that Bringier waived his right to a Kastigar hearing. At the conclusion of the hearing, the district court denied Bringier’s Kastigar motion, reasoning that Bringier had waived his right to such a hearing. On appeal, Bringier argues that his Sixth Amendment. right to conflict-free representation was violated because D’Am-ico had a conflict of interest, and thus that D’Amico’s testimony should be struck and the case should be remanded to the district court for another hearing on his Kastigar motion. Specifically, Bringier argues that the district court erred in failing to take into account D’Amico’s conflict of interest. Bringier claims .that after D’Amico withdrew from representing him in the present case, D’Amico began representing James Eugene Warner, III, one of Bringier’s co-defendanfs. Bringier. also, claims that D’Amico had previously represented Ken Barrow, a cooperating informant who ulti mately testified against Bringier at trial. D’Amico represented Barrow in 1998 and in 2000 during the time D’Amico was representing Bringier. We disagree with Bringier’s contention that D’Amico testified at the hearing while laboring under a conflict of interest. The timeline of this case is indicative: When Bringier entered into the immunity agreement, D’Amico (who was then representing him) no longer represented Barrow and did not yet represent Warner. D’Amico could not have known at that time that Barrow, his former client, would become a prosecution witness in the case against Bringier, nor could he have known that at some point in the future he would represent Warner in a case where Bringier would be his co-defendant. Similarly, at the time of the hearing on the Kastigar motion, D’Amico no longer represented Bringier and did not attend the hearing in a representative capacity. D’Amico’s role in the hearing was to provide factual, non-privileged testimony regarding the waiver of the Kastigar hearing. In addition, the only case Bringier cites in support of his claim that D’Amico had a conflict of interest, United States" }, { "docid": "9845394", "title": "", "text": "because his unofficial actions would not be pursuant to municipal policy. The employer, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties. If he can show that his actions were pursuant to an official policy, he can at least shift part of his liability to the municipality. If he is successful in asserting a good faith immunity defense, the municipality may be wholly liable because it cannot assert the good faith immunity of its employees as a defense to a section 1983 action. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). 729 F.2d at 907. The court found that the county attorney’s representation of the officer was inconsistent with the attorney’s professional obligation to his client as well as Canons 5 and 9 of the ABA Code of Professional Responsibility. Because the conflict was obvious, the Second Circuit held that the district court had a duty to ensure that the client fully appreciated his situation. Furthermore, since the jury never had a chance to consider the officer’s good faith immunity defense, the officer did not receive the fair trial to which he was entitled. Accordingly, the court reversed the judgment against the officer and ordered a new trial. Id. at 910. Thus far, the Second Circuit is the only appellate court to have addressed this issue directly. But see Van Ooteghem v. Gray, 628 F.2d 488, 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982) (serious conflict of interest could exist in future § 1983 actions in which one attorney represents both a county and a county official individually). In Coleman v. Frierson, 607 F.Supp. 1566 (N.D.Ill.1985), defendants moved for relief from a default judgment claiming counsel’s representation of them gave rise to a conflict of interest warranting such relief under the rationale of Dunton. Judge Shadur concluded there was no clear basis for reading" }, { "docid": "2759050", "title": "", "text": "between statutory and “pocket” immunity, the effect of “pocket” immunity, what was necessary to be in a criminal complaint affidavit, and conduct before the Grand Jury. The record also demonstrates a failure to supervise an assistant district attorney who was also a member of the Borough of Strouds-burg Police Civil Service Commission concerning a prosecutor’s duty not to use the criminal process to force John Pansy from the police department. [Brf. in Opp. to Monroe Cty. S.J. Mot. at 22; emphasis added.] 1. County Liability for Prosecutorial Decisions Williams has not sued the District Attorney and concedes that Gregor, in his individual capacity, would be absolutely immune from liability for his decision' to prosecute Williams. (Brief in Opp. to Monroe Cty. S.J. Mot. at 14 n. 3.) Asserting that Monroe County cannot claim the absolute immunity that is a personal to a prosecutor, see Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), Williams insists that the decision of the District Attorney to prosecute him is an official “edict or act” of a county policymaker that is properly attributed to Monroe County under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny. Under Monell, “[a] public entity such as [Monroe] County may be held liable for the violation of a Constitutional right under 42 U.S.C. § 1983 only when the alleged unconstitutional action executes or implements policy or a decision officially adopted or promulgated by those whose acts may fairly be said to represent official policy.” Reitz v. County of Bucks, 125 F.3d 139, 144 (3d Cir.1997). Alternatively, “in the absence of an unconstitutional policy, a municipality’s failure to properly train its employees and officers can create an actionable violation of a party’s constitutional rights under § 1983 ... where the failure to train amounts to deliberate indifference to the rights of persons with whom the [municipal employees] come into contact.’ ” Id. at 145. The essential premise of Williams’ first liability theory is that a District" }, { "docid": "21220", "title": "", "text": "part subsidized by the state and local government “is a private individual acting in a professional capacity” and therefore not amenable to a § 1983 action. Coneededly, there are differences between a court-appointed lawyer from a pool of volunteers, Thomas, or from an agency funded by private contributions, Peake, and one serving full time in a public office paid by public revenues authorized and mandated by statute. But the fact that one comes to his court-appointed role as a result of a state-mandated and county-financed system does not, in any respect whatsoever, distinguish his professional responsibility to his client from that of any attorney appointed to serve without pay, or paid by a legal aid society financed largely by private contributions. We find it difficult to perceive “color of law” in the activities in the first category, and deny its existence in the latter. In any event, we do not deem it necessary to decide the question, see Wardrop v. Dean, 459 F.2d 1030 (3d Cir.1972), because in the view we take, even assuming the color of law requirement to have been met, we hold that a County Public Defender, created under the Pennsylvania statute, enjoys immunity from liability. The Supreme Court has held that a state judge enjoys immunity for acts done in the performance of his judicial function, Pierson v. Ray, 386 U.S. 547 (1967). In Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966), and in Kauffman v. Moss, 420 F.2d 1270 (3d Cir.1970), we extended that immunity to state prosecutors ; and in Bethea v. Reid, 445 F.2d 1163 (3d Cir.1971), to an Assistant United States Attorney in an action brought for an alleged Fourth Amendment deprivation. Our decisions therefore reflect the current state of the law throughout the circuits. “Prosecutors, state and city attorneys are generally immune under the Civil Rights Act, unless their acts are clearly outside the scope of their jurisdiction.” Antineau, Federal Civil Rights Acts, § 40, and cases cited therein. We perceive no valid reason to extend this immunity to state and federal prosecutors and judges and to withhold it from state-appointed" }, { "docid": "4130352", "title": "", "text": "to dismiss plaintiff because that power is granted by Colorado law to the board of education acting in its official capacity. It is settled that the members of the board may be liable in their official capacities under § 1983. Monell v. Dept. of Social Services of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As individuals, they are liable if they knew or reasonably should have known that their actions would violate the constitutional rights of the person affected or if they acted with malicious intention or impermissible motivation or with such disregard of constitutional rights that their actions were not in good faith. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975); Bertot v. School District No. 1, Albany Cty., Wyo., 522 F.2d 1171 (10th Cir. 1975) (extending the Wood test to teacher dismissal cases). The same qualified immunity based upon good faith has been extended to school administrators who lacked actual power to dismiss teachers but who influenced the decision by their recommendations or other actions. Simineo v. School Dist. No. 16, Park Cty., Wyo., 594 F.2d 1353 (10th Cir. 1979); Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1976); Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), cert. denied 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212. Defendant William Pehr, the school district attorney, contends that he is immune from liability under § 1983. While it is true that prosecutors, public defenders and other attorneys are absolutely immune for their activities inextricably connected with the judicial process, a line has been drawn between the prosecutorial function and other functions of the attorney. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976), cert. denied 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977). Qualified immunity, rather than absolute immunity, was extended to a city attorney who gave advice in connection with the discharge of a public employee in Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970). The court emphasized" }, { "docid": "3309764", "title": "", "text": "requiring their client’s ex-husband to make child support payments. The ex-husband refused to comply with the court order. His subsequent detention for civil contempt was caused by violation of a civil court order entered after a judicial hearing, and not by the unreviewed decision of a private attorney to initiate criminal proceedings. That rationale for private attorney immunity is confined to conduct of civil proceedings where the decision of a judicial officer is interposed prior to any deprivation of an opponent’s liberty interest. Thus Jones is inapposite to the instant case. Where attorneys engage in the criminal process, research discloses only one group which shares absolute immunity from civil liability equal to that of a public prosecutor, namely, the state-employed public defender. Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973). This extension of immunity was mandated by considerations of public policy protecting the exercise of professional discretion by attor neys serving in public offices in the criminal justice system. We do not conceive that the public interest compels absolute immunity for the private attorney as an encouragement of the private attorney’s free exercise of professional judgment in directing his client to file a criminal complaint in a debt-collection dispute. While the court recognizes the public’s interest in prosecuting hotel misdemeanants and disorderly persons, we are not persuaded that a private attorney’s allegedly malicious exercise of discretion counseling prosecution resulting in criminal detention arising from an essentially private debt should be immunized from liability- We think the relevant considerations regarding private attorney immunity from an otherwise valid section 1983 claim are most concisely set forth in United States General, Inc. v. Schroeder, 400 F.Supp. 713 (E.D.Wis. 1975), cited by both parties herein. In that case the complaint under section 1983 alleged that an attorney maliciously commenced a garnishment action without hope of success, without specific direction from his client, under a statute which had previously been declared unconstitutional by the Supreme Court. After reviewing traditional grounds for attorney immunity for conduct during the course of advocacy of a" }, { "docid": "22357270", "title": "", "text": "v. Newell, 315 F.3d 510 (5th Cir.2002), is clearly distinguishable from the present case. In Newell, a lawyer simultaneously represented two defendants at trial and chose to sacrifice one of his clients to save the other. Id. at 518-19. Conversely, in the present case, D’Amico never represented two clients with conflicting interests at the same time. In addition, it is worth noting that the district court specifically found D’Amico’s testimony credible. The district court stated: Let me say at the outset, I have known Mr. D’Amico for many years. I not only know of him by reputation, but I have had him appear in this court on a number of occasions. He has a representation [sic], not only with me, but I think among the criminal law community and the legal community in this area and in this state of being a premier criminal law attorney. Thus, Bringier’s claim that D’Amico labored under a conflict of interest has no merit. Moreover, even assuming arguendo that D’Amico did have a conflict and that his testimony should have been stricken, the district court still had ample evidence to find that Bringier had waived his right to a Kastigar hearing. First, Special Agent Roger White also testified to the terms of the immunity agreement. Second, the letter memorializing the immunity agreement was also introduced as evidence. Accordingly, the district court did not err in finding that Bringier waived his right to a Kastigar hearing and thus did not err by refusing to quash the indictment. Second, the district court did not err by denying Bringier’s motion for acquittal based on insufficiency of the evidence. With regard to the conspiracy to distribute narcotics conviction, the government introduced sufficient evidence demonstrating Bringier’s role in the conspiracy: various witnesses testified and the government presented additional evidence corroborating the testimony (e.g., phone records and drugs that were seized). There was also ample evidence that Bringier engaged in money laundering. Specifically, there was evidence that Bringier used a nominee to purchase a car and a house with the proceeds of an unlawful activity and that he made an" }, { "docid": "21966652", "title": "", "text": "defendant Young, one against him as, and only because he was, attorney general of Minnesota. No relief was sought against him individually, but only in his capacity as attorney general. . . It would therefore seem clear that within the true meaning of the 11th Amendment the suit brought in the Federal court was one, in legal effect, against the state.” 209 U.S. at 173-174, 28 S.Ct. at 459. As noted by Charles Alan Wright, supra at 185-186, “There is no doubt that the reality is as Justice Harlan stated it and that everyone knew that the decision in Ex Parte Young rests on purest fiction.” But against the clear holding of one of the four or five most important Supreme Court decisions in this nation’s history, “the authority and finality of ... [which] can hardly be overestimated”, the collateral attacks of the state officials in this case that the state is the real party in interest or that they enjoy immunity by virtue of performing a quasi-judicial or quasi-legislative function are unavailing. Defendant state officials also cite this Court to the decisions in Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953), Basista v. Weir, 340 F.2d 74 (3d Cir. 1965) and Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and contend that these cases establish the principle that a public official, acting in good faith in the performance of his duties, is immune from civil liability in a civil rights action. While judges (Pierson v. Ray), members of city council (Cobb) and police officers (Basista), as well as other public officials, may utilize a good faith defense to actions for damages under the Civil Rights Act, no public official has an absolute and unqualified immunity from suit under Section 1983. Pierson v. Ray, supra at 555, 87 S.Ct. 1213. Pierson v. Ray and the other cases on the subject do not amount to “a directive that ‘good faith’ is a defense to all actions under the Civil Rights Act. Rather, Pierson . . . made ‘good faith’ a defense to a" }, { "docid": "21221", "title": "", "text": "color of law requirement to have been met, we hold that a County Public Defender, created under the Pennsylvania statute, enjoys immunity from liability. The Supreme Court has held that a state judge enjoys immunity for acts done in the performance of his judicial function, Pierson v. Ray, 386 U.S. 547 (1967). In Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966), and in Kauffman v. Moss, 420 F.2d 1270 (3d Cir.1970), we extended that immunity to state prosecutors ; and in Bethea v. Reid, 445 F.2d 1163 (3d Cir.1971), to an Assistant United States Attorney in an action brought for an alleged Fourth Amendment deprivation. Our decisions therefore reflect the current state of the law throughout the circuits. “Prosecutors, state and city attorneys are generally immune under the Civil Rights Act, unless their acts are clearly outside the scope of their jurisdiction.” Antineau, Federal Civil Rights Acts, § 40, and cases cited therein. We perceive no valid reason to extend this immunity to state and federal prosecutors and judges and to withhold it from state-appointed and state-subsidized defenders. Implicit in the extension of judicial immunity to prosecutors was the recognition of a public policy encouraging free exercise of professional discretion in the discharge of pretrial, trial, and post-trial obligations. Indeed, the very reasons advanced to assert that the Public Defender acts under color of state law because of the favorable comparision of his activities with those of public prosecutors, would, a fortiori, support an argument in favor of the public defender on the immunity issue. There are other considerations of public policy. First, there is the desirability of encouraging able men and women to assume Public Defender roles. To subject this defense counsel to liability, while cloaking with immunity his counterpart across the counsel table, the clerk of the court recording the minutes, the presiding judge, and counsel of a co-defendant, privately retained or court-appointed, would be to discourage recruitment of sensitive and thoughtful members of the bar.. Complaints under the Civil Rights Act, like the one at bar, are usually pro se. These receive special treatment, favorable to plaintiff." }, { "docid": "3350301", "title": "", "text": "labels or the timing that controls, but rather the inquiry they help address: whether the employee’s private political beliefs could interfere with the effective discharge of his public duties. While no Supreme Court case has faced a plaintiff within the Elrod /Branti exception, several lower court cases, concerning as here government attorneys, have addressed the exception and ruled on the issue reserved in Justice Stevens’ footnote. These decisions show that most government attorneys are properly treated differently from the two APDs in Branti since most government attorneys are in positions of government policymaking and hold confidences of government leaders through attorney/client relationships. As the Seventh Circuit noted about prosecutors, their “client” is not an individual, but society as a whole, and assistant prosecutors, in carrying out their duties, make certain decisions that actually create policy. Several of these courts looked to the state statutes, city charters, and city codes of ordinances to determine the duties of their plaintiff attorneys. These courts, either expressly or implicitly, rejected the plaintiffs’ attempts to portray their roles as limited, technical, neutral ones, for “the relevant inquiry focuses on the function of the ‘public office’ involved, not the function of the particular employee occupying the office.” As one court explained about an assistant city attorney whose duties had been largely limited to the public housing area, a mayor should be free to distribute assignments among his city attorneys in an entirely different fashion and however he sees fit. In sum, to determine if the Mayor and his City Attorney may demand absolute loyalty of their Assistant City Attorneys and may fire those who, in their eyes, do not exhibit such loyalty, this Court must consider what is and should be expected of a person in the position of Assistant City Attorney, that is, must determine if such a person can function properly in that position without such loyalty. B. Qualified Immunity Whether or not plaintiffs entire complaint can withstand summary judgment, the Mayor and the City Attorney may nonetheless be entitled to summary judgment on other grounds, for government officials sued in their individual capacity" }, { "docid": "6964356", "title": "", "text": "in the presence of the Court. Weiss v. Jacobs, 405 Pa. 390, 175 A.2d 849 (1961). The public officer defendants further contend that they are immune from civil liability under the Civil Rights Act. This contention has been specifically rejected by the Supreme Court in Monroe v. Pape, supra, and particularly in Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (I960!, wherein the Supreme Court reversed the Seventh Circuit which had held the following individuals to be immune from liability: City Commissioners, Counsel for the City, Police Chief, Police Officers, Sheriff, Deputy Sheriff, Justice of the Peace, States Attorney and Assistant States Attorney. The individual defendants, a private attorney and his client, argue that they are immune from liability under the Civil Rights Act because the acts of private individuals are not within the purview of the Civil Rights Act § 1983. While the main purpose of the Civil Rights Act is to protect the Fourteenth Amendment rights of all citizens from encroachment by arbitrary state action, individuals who allegedly joined or cooperated with state officers who acted under color of state law, are subject to liability under the Civil Rights Act. Picking v. Pennsylvania R. Co., 151 F.2d 240 (3 Cir. 1945) ; Valle v. Stengel, 176 F.2d 697 (3 Cir. 1949). In his Complaint at paragraph 28, the plaintiff states in part that his injury was “ * * * caused by all of said defendants, acting individually, jointly or in concert.” Therefore, after considering this Complaint, with each and every allegation viewed in a light most favorable to the plaintiff, we hold that the plaintiff has stated a valid claim. ORDER And now, this 2nd day of December, 1963, the defendants’ motion to dismiss the plaintiff’s complaint is denied. . Paragraph 15 of the Complaint states in part that the plaintiff: “ * * * could not in violation of his rights of free- . dom of religion, as guaranteed by the Constitution of tbe United States, comply ■with tbe so-called ‘notice’ to appear * * ¥ >» . 42 U.S.C.A." }, { "docid": "22357269", "title": "", "text": "represented Barrow in 1998 and in 2000 during the time D’Amico was representing Bringier. We disagree with Bringier’s contention that D’Amico testified at the hearing while laboring under a conflict of interest. The timeline of this case is indicative: When Bringier entered into the immunity agreement, D’Amico (who was then representing him) no longer represented Barrow and did not yet represent Warner. D’Amico could not have known at that time that Barrow, his former client, would become a prosecution witness in the case against Bringier, nor could he have known that at some point in the future he would represent Warner in a case where Bringier would be his co-defendant. Similarly, at the time of the hearing on the Kastigar motion, D’Amico no longer represented Bringier and did not attend the hearing in a representative capacity. D’Amico’s role in the hearing was to provide factual, non-privileged testimony regarding the waiver of the Kastigar hearing. In addition, the only case Bringier cites in support of his claim that D’Amico had a conflict of interest, United States v. Newell, 315 F.3d 510 (5th Cir.2002), is clearly distinguishable from the present case. In Newell, a lawyer simultaneously represented two defendants at trial and chose to sacrifice one of his clients to save the other. Id. at 518-19. Conversely, in the present case, D’Amico never represented two clients with conflicting interests at the same time. In addition, it is worth noting that the district court specifically found D’Amico’s testimony credible. The district court stated: Let me say at the outset, I have known Mr. D’Amico for many years. I not only know of him by reputation, but I have had him appear in this court on a number of occasions. He has a representation [sic], not only with me, but I think among the criminal law community and the legal community in this area and in this state of being a premier criminal law attorney. Thus, Bringier’s claim that D’Amico labored under a conflict of interest has no merit. Moreover, even assuming arguendo that D’Amico did have a conflict and that his testimony should" }, { "docid": "4755603", "title": "", "text": "address this issue. In Manganella v. Keyes, 613 F.Supp. 795 (D.Conn.1985) (Burns, J.), the plaintiff brought a section 1983 suit against the Town of East Haven and two police officers in their individual and official capacities. The same attorney represented all the defendants. The plaintiff moved to disqualify the attorney from joint representation “claiming an inherent conflict of interest between the defense of the police officers in their individual capacities and the defense of the municipality.” Id. at 796. The court noted that police officers enjoy a qualified immunity defense not available to municipalities and local governments. Id. at 797 (citing Owen v. City of Independence, 446 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980)). Thus, a police officer successfully asserting a qualified immunity defense may leave the municipality wholly liable for damages. 613 F.Supp. at 797-98. See also Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984). The district court described the potential conflict thusly: The attorney representing both the police officer and the municipality is faced with two opposing defenses of his clients. On behalf of the police officer he may be required to argue that his client was performing his duties in accordance with official policy. At the least, the success of this defense will lead to joint liability with the municipality, and may result in sole liability of the municipality if the officer is found to be protected by qualified immunity. However, on behalf of the municipality, the attorney may be required to argue that the officer’s actions were violative of municipal policy or custom, potentially resulting in the officer’s exclusive liability. 613 F.Supp. at 798. In resolving this potential conflict of interest, the court noted that separate representation is not required in all instances of potential or actual conflict; affected clients should be free to retain counsel of their choice after being informed of the possible adverse consequences attendant to joint representation. Id. at 799 (citing In re Taylor, 567 F.2d 1183, 1191 (2d Cir.1977)). Judge Burns ordered that the defense attorney in Manganella provide the court “with an affidavit" }, { "docid": "4925018", "title": "", "text": "he is to avoid liability, must show that his actions were reasonably within the umbrella of his official duties. Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984). Furthermore, although § 1983 does not expressly incorporate any common law immunities, the Supreme Court has “found that [in some instances] a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ ” Owen v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980) (quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). Among the traditional immunities is that of police officers who, when acting within the scope of their duties, “enjoy a ‘good faith and probable cause’ defense to § 1983 suits similar to that which existed in false arrest actions at common law.” Owen, supra 445 U.S. at 637, 100 S.Ct. at 1408. By contrast, neither a tradition of immunity nor policy considerations justify a qualified immunity for municipalities and local governments under § 1983. Moreover, the good faith of its employees cannot be adopted by a governmental entity as a defense to a § 1983 action. Id. at 638, 100 S.Ct. at 1409. Consequently, a police officer who successfully defends a § 1983 action by asserting good faith immunity may leave the municipality, which does not have such a defense available, wholly liable. The attorney representing both the police officer and the municipality is faced with two opposing defenses of his clients. On behalf of the police officer he may be required to argue that his client was performing his duties in accordance with official policy. At the least, the success of this defense will lead to joint liability with the municipality, and may result in sole liability of the municipality if the officer is found to be protected by qualified immunity. How;ever, on behalf of the municipality, the attorney may be required to argue that the officer’s actions were violative" } ]

[ { "docid": "22010095", "title": "", "text": "administrative remedies before seeking habeas corpus relief. Soyka v. Alldredge, 3 Cir. 1973, 481 F.2d 303; see Waddell v. Alldredge, 3 Cir. 1973, 480 F.2d 1078. Before a federal prisoner can bring a habeas corpus proceeding which challenges an adverse decision of the United States Parole Board, he must have availed himself of the available administrative procedures for review of that decision. In the instant case petitioner admits he has not filed an appeal to the National Appellate Board as provided for in 39 Fed.Reg. § 2.26 (1974). Therefore, he has not obtained a final decision from the Parole Board. Petitioner asserts that an appeal to the National Appellate Board is not presently available to him because the Board’s regulations, 39 Fed.Reg. § 2.26 (1974), require that an appeal of the Regional Director’s decision to the National Appellate Board must be taken within thirty days after the entry of the written decision of the Regional Director, that the thirty day period has expired, and hence he has in effect exhausted all available administrative remedies. The court deems it imperative to note that while the exhaustion doctrine does not require that the National Appellate Board has actually ruled on the merits of petitioner’s claims, it does require that the Appellate Board has had his contentions presented to it, thereby giving the Board an opportunity to review the parole decision reached below. See United States of America ex rel. Geisler v. Walters, 3 Cir., 510 F.2d 887 (filed February 5, 1975); McKart v. United States, 1969, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194; Noyd v. Bond, 1969, 395 U.S. 683, 89 S.Ct.1876, 23 L.Ed.2d 631; cf. Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439. The basic premises underlying the exhaustion requirement are that (1) judicial time and effort may be conserved because the agency might grant the relief sought; (2) judicial review may be facilitated by allowing the agency to develop a factual record and apply its expertise; and (3) administrative autonomy requires that an agency be given an opportunity to correct its own" } ]

[ { "docid": "17878162", "title": "", "text": "the attention of the Chief, Special Procedures Function. 26 C.F.R. § 401.6325-l(f). The request must contain (1) the name and address of the taxpayer; (2) a copy of the notice of federal tax lien; and (3) the grounds upon which the issuance of a release is sought. Id. Information Resources does not claim that it followed the requisite procedures precisely. David Salinas sent a letter to the I.R.S. requesting the release of the erroneously filed lien, but the letter was not sent to the appropriate person. It also was unaccompanied by the necessary supporting materials. The company does allege, however, that it has constructively exhausted the administrative remedies, and to exhaust the remedies now would be futile. Exhausting the administrative remedies would entail obtaining the release of a lien which has already been released. Information Resources cites numerous cases establishing exceptions to the exhaustion doctrine. Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985) (“Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavoidable or are wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action”); Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561, 109 S.Ct. 1361, 1375, 103 L.Ed.2d 602 (1989) (“Administrative remedies that are inadequate need not be exhausted”); Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 58 (D.C.Cir.1987) (“Once constructive exhaustion [of administrative remedies] occurs, any available administrative appeal— i.e. actual exhaustion—becomes permissive in the sense in which the term is used here; the requester may pursue it, but his failure to do so does not bar a lawsuit”). Although Information Resources is correct as to the numerous exceptions which the courts have applied to the doctrine of exhaustion of administrative remedies, the cases it cites apply only to the judicially created doctrine. There is a distinct difference between statutorily mandated exhaustion of administrative remedies and the judicially created doctrine of exhaustion of administrative remedies. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975); Power" }, { "docid": "18997898", "title": "", "text": "exhausted their administrative remedies. See, e.g., Christopher W. v. Portsmouth School Committee, 877 F.2d 1089, 1093-94 (1st Cir.1989) and Stauffer by DeMarco v. William Penn School District, 829 F.Supp. 742, 748 (E.D.Pa.1993). “EHA exhaustion must occur before plaintiffs may file an action under any other federal law seeking relief that is also available under the EHA.” Waterman v. Marquette-Alger Intermediate School District, 739 F.Supp. 361, 365 (M.D.Mich.1990), and Hayes v. Unified School District No. 377, 877 F.2d 809, 812 (10th Cir.1989). Failure to exhaust administrative remedies is grounds for dismissal of the complaint on a Rule 12(b)(6) motion. Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir.1992). For the reasons discussed previously, the viability of plaintiff’s claims asserted under the IDEA, section 504 and section 1983 against all defendants, the only federal claims asserted, all turn on the question of whether he can demonstrate that he qualifies for an exemption from the administrative exhaustion requirement. Although the policy of requiring exhaustion of administrative remedies is “a strong one, some exceptions have been recognized.” Komninos v. Upper Saddle River Board of Education, 13 F.3d 775, 778 (3d Cir.1994). Recognized exceptions are: 1) a showing that the parents were unaware of their right of administrative appeal because the school district failed to notify them of their right to pursue an administrative remedy; 2) a showing that the administrative process would be futile or inadequate; 3) if the issue presented is purely a legal question; 4) a showing that the administrative agency cannot grant effective relief; or 5) if requiring exhaustion “would work ‘severe or irreparable harm’ upon a litigant.” Id. See also: Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988); and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir.1990); and Gardner v. School Board Caddo Parish, 958 F.2d 108, 111-12 (5th Cir.1992). Frith argues that he is exempt from the exhaustion requirement because his parents never received proper notice of their due process right to challenge decisions made by the district and school administrators. Notice requirements Notice requirements are imposed pursuant" }, { "docid": "1985999", "title": "", "text": "DISCUSSION A. Exhaustion Initially, we note that when Leigh-nor filed his habeas petition in the district court he had not exhausted his administrative remedies in that he had not appealed the Parole Commission’s decision to the Commission’s National Appeals Board pursuant to 28 C.F.R. § 2.26. Thus, the dis trict court entertained Leighnor’s claim prematurely. See Merki v. Sullivan, 853 F.2d 599, 600-01 (8th Cir.1988) (finding federal prisoner’s challenge to Parole Commission decision premature due to prisoner’s failure to appeal to National Appeals Board); Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir.1974) (holding that federal prisoners challenging the actions of prison authorities or prison conditions must exhaust available administrative remedies before seeking habeas relief). However, after the district court entered its judgment, Leighnor did appeal the Parole Commission’s decision to the National Appeals Board. The Board rejected Leigh-nor’s claim that the Parole Commission’s consideration of his escape and use of a false passport violated the rule of specialty. Because Leighnor has now exhausted his administrative remedies the district court’s error has been cured and we need not dismiss the appeal on exhaustion grounds. Accord Arias v. United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir.1981) (holding that because prisoner exhausted remedies after district court’s judgment “the prematurity of the district court’s action is no longer of any significance”) (citation omitted). B. Standing We now turn to the government’s assertion that Leighnor lacks standing to challenge a violation of the rule of specialty. There exists disagreement among the circuits on the question of individuals’ standing to assert breaches of the specialty principle. This court addressed the issue in United States v. Thirion, 813 F.2d 146 (8th Cir.1987), and rejected as “without merit” the argument that an extradited individual lacks standing to challenge a violation of an extradition treaty. Id. at 151 n. 5 (citation omitted). The panel in Thi-rion held that an extradited individual “may raise whatever objections to his prosecution that [the surrendering country] might have.” Id. at 151. We are bound to follow Thirion on this point and thus reject the government’s claim that Leighnor lacks standing" }, { "docid": "17911158", "title": "", "text": "Because Fazzini has filed a pro se petition and appeal, “his pleadings are held to a less stringent standard than those prepared by an attorney.” Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.2001) (citing Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)). Federal prisoners must exhaust their administrative remedies prior to filing a habeas petition under § 2241. Urbina, 270 F.3d at 295 n. 1; Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981). A federal prisoner challenging an adverse parole decision by the Commission must file an appeal to the Board pursuant to 28 C.F.R. § 2.26. Urbina, 270 F.3d at 295 n. 1. 28 C.F.R. § 2.26 provides, in pertinent part: (a)(1) A prisoner or parolee may submit to the National Appeals Board a written appeal of any decision to grant ... rescind, deny, or revoke parole.... (2) The appeal must be filed on a form provided for that purpose within 30 days from the date of entry of the decision that is the subject of the appeal. (c) The National Appeals Board shall act within sixty days of receipt of the appellant’s papers, to affirm, modify, or reverse the decision. Decisions of the National Appeals Board shall be final. 28 C.F.R. §§ 2.26(a)-(c) (2006). The Supreme Court has recently described the purposes of the exhaustion requirement: The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Exhaustion of administrative remedies serves two main purposes. First, exhaustion protects administrative agency authority. Exhaustion gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency’s procedures. Second, exhaustion promotes efficiency. Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. In some cases, claims are settled at the administrative level, and in" }, { "docid": "22010096", "title": "", "text": "court deems it imperative to note that while the exhaustion doctrine does not require that the National Appellate Board has actually ruled on the merits of petitioner’s claims, it does require that the Appellate Board has had his contentions presented to it, thereby giving the Board an opportunity to review the parole decision reached below. See United States of America ex rel. Geisler v. Walters, 3 Cir., 510 F.2d 887 (filed February 5, 1975); McKart v. United States, 1969, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194; Noyd v. Bond, 1969, 395 U.S. 683, 89 S.Ct.1876, 23 L.Ed.2d 631; cf. Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439. The basic premises underlying the exhaustion requirement are that (1) judicial time and effort may be conserved because the agency might grant the relief sought; (2) judicial review may be facilitated by allowing the agency to develop a factual record and apply its expertise; and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. United States ex rel. Marrero v. Warden, 3 Cir. 1973, 483 F.2d 656, 659, rev’d on other grounds, 1974, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383; McKart v. United States, 1969, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194. In addition, “. . . it is possible that frequent and deliberate flouting of adminitrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.” McKart v. United States, 395 U.S. at 195, 89 S.Ct. at 1663. In the instant case, if the court were to allow a prisoner to simply wait until the time prescribed by the regulations for filing an appeal to the National Appellate Board expired and then file a petition for a writ of habeas corpus which the court would consider on its merits, the doctrine of exhaustion of administrative remedies would be circumvented and wholly undermined. That is why the court in the instant ease will dismiss the petition for a writ of habeas corpus for failure to exhaust administrative remedies." }, { "docid": "22450406", "title": "", "text": "do with Fuller’s claim, and until the appeals board has been given an opportunity to act, Fuller has not exhausted his administrative remedies. The National Appeals Board may deny the appeal on the ground that it is untimely under 28 C.F.R. § 2.26, or the Board, in its discretion, may allow Fuller to file the appeal out of time and rule on the merits of Fuller’s contentions. Cf. Talerico, 391 F.Supp. at 195. In short, Fuller has not shown that such an appeal would be futile. After a final decision by the Board, Fuller will have exhausted sufficiently his administrative remedies. We thus hold that the district court did not abuse its discretion in dismissing Fuller’s petition for failure to exhaust his administrative remedies. The judgment of the district court is AFFIRMED. Fuller’s motion for this court to appoint counsel on appeal is DENIED. Fuller has demonstrated that he is capable of representing himself by filing competent pleadings and a brief that succinctly states his issues and argument. Further, the case does not present exceptional circumstances warranting appointment of counsel. See Santana v. Chandler, 961 F.2d 514, 515-16 (5th Cir.1992)." }, { "docid": "22629051", "title": "", "text": "lacked subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cenante v. United States, 402 Fed.Appx. 886, 887 (5th Cir.2010) (court had subject-matter jurisdiction over § 2241 claim seeking admission into drug rehabilitation program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir.1998); Canajal v. Tombone, 31 Fed.Appx. 155 (5th Cir.2001). B. Now that we have determined that the district court had jurisdiction to consider the claims, we must address the alternative rulings on the merits of the claims because they are now at issue. We thus turn to the question of whether Gallegos was required to exhaust his administrative remedies. We have held that a federal prisoner filing a § 2241 petition must first pursue all available administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993). However, “[ejxceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62. 'Here, Gallegos challenges the constitutionality of the BOP regulations. His claim is not that the BOP has erred in its application of the regulation excluding alien detainees from participating in rehabilitation programs and halfway house placements. His argument is that the regulation itself must be struck from the Code of Federal Regulations because it violates the due-process and equal-protection rights, under the United States Constitution, of him and all non-citizens. Thus, it would have been futile for him to make an administrative challenge seeking this relief from those who are charged to enforce the regulation. See Taylor v. United States Treasury Dept., 127 F.3d 470, 477 (5th Cir.1997) (noting exhaustion not required where, inter alia, claimant raises constitutional claim that agency would clearly reject). Our precedent supports Gallegos’s argument and therefore we hold that the district court erred in dismissing these claims for failure to exhaust. Now that the merits of the claims are before us, we will turn to the substance of those claims. C. Gallegos is housed in a facility that segregates" }, { "docid": "7187985", "title": "", "text": "States v. Scott, 124 F.3d 1328, 1329-30 (10th Cir.1997), that argument itself would precipitate litigation that should be avoided if possible. Third, dismissal of the appeal would leave the current judgment in place, at least until the granting of a motion under section 2255, thereby risking expiration of a substantial part and possibly all of the one-year limitations period of 28 U.S.C. § 2255, ¶ 6, unless the time devoted to taking the steps required to obtain an appealable judgment were deemed to toll the one-year period. Rather than limit our disposition to a dismissal, which would precipitate a section 2255 motion, we think the most appropriate disposition is to dismiss the appeal as untimely and remand to the District Court with instructions to vacate the judgment and enter a new judgment from which a timely appeal may be taken. At first glance, that course appears to run afoul of the usual rule that a court may not normally circumvent appellate time limits by entering a new judgment. See Mendes Junior International Co. v. Banco do Brasil, S.A., 215 F.3d 306, 312-15 (2d Cir. 2000). However, the appropriate strictness of that rule need not apply to a case such as the pending one where the judgment is vulnerable to being set aside in any event, not simply to overlook an unexcused late filing of a notice of appeal but to remedy a denial of constitutional right. In remanding for entry of a new judgment despite our lack of appellate jurisdiction, we are not adjudicating any aspect of the merits of the appeal that Wint wishes to pursue from his judgment of conviction; we are taking only preliminary steps to enable him to pursue that appeal in a manner that will provide a sound jurisdictional basis for whatever ruling is ultimately made on the merits of that appeal. II. Fuller’s Appeal Enhancement for using a minor. Judge McMahon enhanced Fuller’s offense level by 2 levels for using a minor in the gun-running activity, see U.S.S.G. § 3B1.4. Fuller disputes the finding that Wint was a minor when Fuller recruited him. Although" }, { "docid": "1985998", "title": "", "text": "the meaning of the Treaty. Further, [Leigh-nor’s] contention that his sentence has been enhanced as surely as if he had been convicted is without merit. Utilizing the circumstances of conduct for which [Leighnor] was not charged to go above [his] guideline range was a proper exercise of the Parole Commission’s discretion. Leighnor v. Turner, No. 88-3068, slip op. at 1-2 (W.D. Mo. May 20, 1988) (citation omitted). In this appeal, Leighnor contests only the Parole Commission’s reliance on his escape and use of a false passport to enhance his parole guideline range. He no longer challenges his detention between the time of his return to the United States and the time of the dismissal of the escape charge because when he was sentenced for his second mail fraud conviction the sentencing judge granted him credit for the time he spent in confinement after his extradition. We conclude that the Parole Commission’s consideration of Leighnor’s escape and use of a false passport did not violate the specialty doctrine and thus affirm the district court’s judgment. II. DISCUSSION A. Exhaustion Initially, we note that when Leigh-nor filed his habeas petition in the district court he had not exhausted his administrative remedies in that he had not appealed the Parole Commission’s decision to the Commission’s National Appeals Board pursuant to 28 C.F.R. § 2.26. Thus, the dis trict court entertained Leighnor’s claim prematurely. See Merki v. Sullivan, 853 F.2d 599, 600-01 (8th Cir.1988) (finding federal prisoner’s challenge to Parole Commission decision premature due to prisoner’s failure to appeal to National Appeals Board); Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir.1974) (holding that federal prisoners challenging the actions of prison authorities or prison conditions must exhaust available administrative remedies before seeking habeas relief). However, after the district court entered its judgment, Leighnor did appeal the Parole Commission’s decision to the National Appeals Board. The Board rejected Leigh-nor’s claim that the Parole Commission’s consideration of his escape and use of a false passport violated the rule of specialty. Because Leighnor has now exhausted his administrative remedies the district court’s error has been cured and" }, { "docid": "22010098", "title": "", "text": "Upon dismissal of this petition, relator may file a written appeal of the Regional Director’s decision to the National Appellate Board. The Board may decide to deny the appeal on the ground that it is untimely under 39 Fed.Reg. § 2.26 (1974), or the Board in its discretion may allow petitioner to file the appeal out of time and rule on the merits of his contentions. It is only after the petitioner has filed an appeal to the Appellate Board, thereby giving it the opportunity to rule on his contentions, that he would have exhausted his administrative remedies. Even if this court were to accept petitioner’s argument that he has exhausted his administrative remedies because the time period for filing an appeal to the National Appellate Board has expired, his petition might still be dismissed on the ground he deliberately bypassed an available administrative remedy and therefore should be denied an opportunity to assert his claims in federal court. Fay v. Noia, 1963, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837; Henry v. Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Angle v. Laird, 10 Cir. 1970, 429 F.2d 892, cert. denied, 1971, 401 U.S. 918, 91 S.Ct. 90, 27 L.Ed.2d 819. The test for such deliberate bypass or waiver is an awareness of the availability of an administrative remedy and a decision not to use it made by the petitioner himself. Angle v. Laird, 429 F.2d at 894; Watkins v. Crouse, 10 Cir. 1965, 344 F.2d 927, 929. Where a federal habeas corpus petitioner has deliberately bypassed available state or administrative procedures and in doing so has forfeited his state or administrative remedies, a federal court in its discretion v may deny habeas corpus relief. See Montgomery v. Hopper, 5 Cir. 1973, 488 F.2d 877; United States ex rel. Schaedel v. Follette, 2 Cir. 1971, 447 F.2d 1297; Anderson v. Nelson, 9 Cir. 1970, 432 F.2d 55; United States ex rel. Navarro v. Johnson, E.D.Pa.1973, 365 F.Supp. 676; United States ex rel. Brown v. Russell, E.D.Pa.1970, 318 F.Supp. 76. The deliberate bypass doctrine is" }, { "docid": "22450404", "title": "", "text": "PER CURIAM: Joel Fuller appeals the district court’s dismissal of his petition for a writ of habeas corpus for failure to exhaust administrative remedies. According to Fuller, he cannot file an administrative appeal because he did not receive notice of the Parole Commission’s decision until the time for filing such an appeal had elapsed. See 28 C.F.R. § 2.26 (1993) (an appeal to the National Appeals Board must be made within 30 days from the date of entry of the decision). A prisoner challenging a Parole Commission decision is required to exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir.1991). The district court’s dismissal of Fuller’s petition for failure to exhaust administrative remedies is reviewed for abuse of discretion. DCP Farms v. Yeutter, 957 F.2d 1183, 1188 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 406, 121 L.Ed.2d 331 (1992). “Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985). However, exceptions to the exhaustion requirement apply only in “extraordinary circumstances,” Yeutter, 957 F.2d at 1189, and Fuller bears the burden of demonstrating the futility of administrative review. See Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir.1992). Athough the exhaustion doctrine does not require that the National Appeals Board actually rule on the merits of Fuller’s claims, it does require that Fuller present the claims to the Board, thereby giving it an opportunity to review the decision reached by the Parole Commission. See Talerico v. Warden, U.S. Penitentiary, 391 F.Supp. 193, 195 (M.D.Pa.1975). Accordingly, before Fuller may seek relief in federal court, he must file an appeal with the National Appeals Board. We require Fuller to take this further step because until he actually appeals and that appeal is acted on, we do not know what the appeals board will" }, { "docid": "22450405", "title": "", "text": "inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985). However, exceptions to the exhaustion requirement apply only in “extraordinary circumstances,” Yeutter, 957 F.2d at 1189, and Fuller bears the burden of demonstrating the futility of administrative review. See Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir.1992). Athough the exhaustion doctrine does not require that the National Appeals Board actually rule on the merits of Fuller’s claims, it does require that Fuller present the claims to the Board, thereby giving it an opportunity to review the decision reached by the Parole Commission. See Talerico v. Warden, U.S. Penitentiary, 391 F.Supp. 193, 195 (M.D.Pa.1975). Accordingly, before Fuller may seek relief in federal court, he must file an appeal with the National Appeals Board. We require Fuller to take this further step because until he actually appeals and that appeal is acted on, we do not know what the appeals board will do with Fuller’s claim, and until the appeals board has been given an opportunity to act, Fuller has not exhausted his administrative remedies. The National Appeals Board may deny the appeal on the ground that it is untimely under 28 C.F.R. § 2.26, or the Board, in its discretion, may allow Fuller to file the appeal out of time and rule on the merits of Fuller’s contentions. Cf. Talerico, 391 F.Supp. at 195. In short, Fuller has not shown that such an appeal would be futile. After a final decision by the Board, Fuller will have exhausted sufficiently his administrative remedies. We thus hold that the district court did not abuse its discretion in dismissing Fuller’s petition for failure to exhaust his administrative remedies. The judgment of the district court is AFFIRMED. Fuller’s motion for this court to appoint counsel on appeal is DENIED. Fuller has demonstrated that he is capable of representing himself by filing competent pleadings and a brief that succinctly states his issues and argument. Further, the case does not present exceptional" }, { "docid": "22010100", "title": "", "text": "essential to the vitality of the exhaustion of administrative remedies doctrine established in Soyka v. Alldredge, 3 Cir. 1973, 481 F.2d 303. Without the deliberate bypass doctrine, administrative review procedures could be avoided simply by waiting for prescribed time periods for administrative appeal to run. Since the court has decided for the aforementioned reasons that petitioner has failed to exhaust his administrative remedies, the court at this time makes no judgment as to whether there has been a deliberate bypass of administrative procedures. The court has discussed the \"deliberate bypass doctrine in order to impress upon those who seek review of Parole Board decisions that this doctrine, in combination with the exhaustion of administrative remedies rule, clearly requires federal prisoners to avail themselves of the means of administrative review of decisions of the hearing examiner panel, provided for under the regulations promulgated by the United States Parole Board, 39 Fed.Reg. §§ 2.24-2.27, before seeking federal habeas corpus relief. The petition for a writ of habeas corpus will be denied for failure to exhaust administrative remedies. . 39 Fed.Reg. § 2.26 (1974) provides: “2.26 Appeal to National Appellate Board, (a) A prisoner may file a written appeal of the Regional Director’s decision under § 2.25 to the National Appellate Board on a form provided for that purpose within thirty days after the entry of the Regional Director’s written decision. The National Appel late Board may, upon the concurrence of two members, affirm, modify, or reverse the decisión, or order a rehearing at the institutional or regional level. (b) The bases for such appeal shall be the same as for a regional appeal as set forth in § 2.25(d). However, any matter not raised on a regional level appeal may not be raised on appeal to the National Appellate Board, (c) Decisions of the National Appellate Board shall be final.” . The doctrine of deliberate bypass and exhaustion of administrative remedies are likewise applicable in actions asking for mandamus remedies." }, { "docid": "19994077", "title": "", "text": "DECISION AND ORDER DENYING HABEAS CORPUS HAUK, District Judge. The petitioner filed a Petition for Writ of Habeas Corpus as a person in Federal Custody on February 27,1978, alleging that the United States Parole Commission had denied petitioner his rights guaranteed by 18 U.S.C. § 4214(b) in that his Parole Revoca tion Hearing was not held “at or reasonably near the place of the alleged parole violation . . . Petitioner also argues that he was not represented by his retained attorney nor was he able to present witnesses on his own behalf. Petitioner’s final argument is that at no time was he ever given a copy of the presentence report, United States Attorneys’ Reports, or Judge’s Recommendation. The Court having examined each and all of the arguments finds them to be without merit. I FAILURE TO EXHAUST INTERNAL ADMINISTRATIVE REMEDIES Habeas Corpus, being a Writ of extraordinary nature requires that one may not resort to the Writ until all other remedies have been exhausted. Mason v. Ciccone, 531 F.2d 867 (8th Cir. 1976). Here, petitioner did not exhaust the following administrative remedies: 1. Appeal to the Regional Parole Commission for the Western Region as authorized by 18 U.S.C. § 4215(a) and 28 C.F.R. § 2.25; and 2. Appeal to the National Parole Commission Appeals Board pursuant to 18 U.S.C. § 4215(b) and 28 C.F.R. § 2.26. The reasons for the requirements of exhaustion of administrative remedies are: judicial review is facilitated by allowing the appropriate agency to develop a factual record; judicial time can be conserved because the agency might grant the relief requested; and administrative autonomy requires that an agency be given the opportunity to correct its own errors. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir. 1973), rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). II PETITIONER WAS NOT ENTITLED TO A LOCAL FINAL PAROLE REVOCATION HEARING 18 U.S.C. § 4214(c) provides that when an alleged parole violator knowingly and intelligently admits a parole violation at a local preliminary hearing, the Commission may conduct the final hearing at the institution" }, { "docid": "23234919", "title": "", "text": "486, 490 (5th Cir.1998) (holding that the PLRA does not apply to § 2241 petitions); McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (same). We have not conclusively determined whether, despite the PLRA’s inapplicability to habeas petitions, a prisoner is still required to exhaust his administrative remedies in all habeas cases. See Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992) (holding that prisoner who was denied parole was required to exhaust administrative remedies prior to filing § 2241 petition because “[ejxhaustion of administrative remedies is jurisdictional”); see also Irwin v. Hawk, 40 F.3d 347, 349 n. 2 (11th Cir.1994) (detailing the Bureau of Prisons’ administrative remedy procedures and requiring a prisoner to exhaust his claim administratively when seeking injunctive relief). Our sister circuits, however, have consistently held that prisoners must exhaust administrative remedies before habeas relief can be granted. Carmona, 243 F.3d at 630, 632, 634 (addressing § 2241 petition); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994) (addressing § 2241 petition); Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981) (discussing habeas petitions in general); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850-51 (3rd Cir.1976) (same); Willis v. Ciccone, 506 F.2d 1011, 1014-15, n. 3 (8th Cir.1974) (same). We agree with the reasoning of our sister circuits and hold that prisoners seeking habeas relief, including relief pursuant to § 2241, are subject to administrative exhaustion requirements. Upon review of the record and the parties’ briefs, we conclude that Skinner was required to exhaust his administrative remedies and failed to do so. Because his failure to exhaust administrative remedies resolves this appeal, we decline to discuss the merits of Skinner’s petition. Accordingly, we affirm the judgment of dismissal. AFFIRMED." }, { "docid": "22010097", "title": "", "text": "errors. United States ex rel. Marrero v. Warden, 3 Cir. 1973, 483 F.2d 656, 659, rev’d on other grounds, 1974, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383; McKart v. United States, 1969, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194. In addition, “. . . it is possible that frequent and deliberate flouting of adminitrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.” McKart v. United States, 395 U.S. at 195, 89 S.Ct. at 1663. In the instant case, if the court were to allow a prisoner to simply wait until the time prescribed by the regulations for filing an appeal to the National Appellate Board expired and then file a petition for a writ of habeas corpus which the court would consider on its merits, the doctrine of exhaustion of administrative remedies would be circumvented and wholly undermined. That is why the court in the instant ease will dismiss the petition for a writ of habeas corpus for failure to exhaust administrative remedies. Upon dismissal of this petition, relator may file a written appeal of the Regional Director’s decision to the National Appellate Board. The Board may decide to deny the appeal on the ground that it is untimely under 39 Fed.Reg. § 2.26 (1974), or the Board in its discretion may allow petitioner to file the appeal out of time and rule on the merits of his contentions. It is only after the petitioner has filed an appeal to the Appellate Board, thereby giving it the opportunity to rule on his contentions, that he would have exhausted his administrative remedies. Even if this court were to accept petitioner’s argument that he has exhausted his administrative remedies because the time period for filing an appeal to the National Appellate Board has expired, his petition might still be dismissed on the ground he deliberately bypassed an available administrative remedy and therefore should be denied an opportunity to assert his claims in federal court. Fay v. Noia, 1963, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837; Henry v." }, { "docid": "22629050", "title": "", "text": "of discretion a dismissal of a § 2241 petition for failure to exhaust administrative remedies. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994). “In an appeal from the denial of habeas relief, this court reviews a district court’s findings of fact for clear error and issues of law de novo.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001). A. We begin by addressing the jurisdictional ruling upon which the district court based its dismissal. Section 2241 is the proper procedural vehicle if a prisoner “challenges the execution of his sentence rather than the validity of his conviction and sentence.” United States v. Cleto, 956 F.2d 83, 84 (5th Cir.1992). Here, Gallegos maintains he is being denied benefits that could result in a one-year reduction in his sentence. As we have noted, participation in the rehabilitation program can result in a reduction in sentence of up to twelve months. A claim challenging the denial of entry into the program therefore is properly raised under § 2241 and the district court erred in concluding it lacked subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cenante v. United States, 402 Fed.Appx. 886, 887 (5th Cir.2010) (court had subject-matter jurisdiction over § 2241 claim seeking admission into drug rehabilitation program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir.1998); Canajal v. Tombone, 31 Fed.Appx. 155 (5th Cir.2001). B. Now that we have determined that the district court had jurisdiction to consider the claims, we must address the alternative rulings on the merits of the claims because they are now at issue. We thus turn to the question of whether Gallegos was required to exhaust his administrative remedies. We have held that a federal prisoner filing a § 2241 petition must first pursue all available administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993). However, “[ejxceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at" }, { "docid": "22423179", "title": "", "text": "been a deliberate and understanding waiver of an administrative remedy. The record affirmatively establishes that Lockhart did not understandingly and knowingly forego administrative review of his classification “for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of [administrative] procedures.\" Id. at 439, 83 S.Ct. at 849. He did not “waive” his right to administrative review for he did not know what an “appeal” was, or the consequences of relinquishing it. Moreover, although since-abolished procedures (described below) would have resulted in the development of a fuller administrative record if Lockhart had initiated an administrative appeal, it is not true that his failure to appeal precluded the Selective Service System from developing a record in support of its classification decision. In the first place, a local board is not foreclosed from further inquiry when a registrant makes a prima facie written showing and fails to request a personal appearance. The local board has broad power to compel the registrants and others to appear and produce evidence, on its own initiative, and, if need be, may call upon the investigative facilities of the federal government for assistance. Dickinson v. United States, 346 U.S. 389, 396-397, 74 S.Ct. 152, 98 L.Ed. 132 (1954). In the second place, appellate review is not precluded by the registrant’s failure to appeal his classification; the government appeal agent, who is required to be “equally diligent in protecting the interest of the Government and the rights of the registrant in all matters,” 32 C.F.R. § 1604.71(d) (5), is expressly authorized to “appeal to an appeal board from the classification of a registrant by the local board.” 32 C.F.R. § 1626.2(b). Since the government had ample authority to initiate steps which would have led to the development of a fuller administrative record, there is no justification for sustaining the local board’s arbitrary rejection of the defendant’s prima facie claim based upon an uncontroverted showing, simply because the defendant failed to take an administrative appeal. Finally, it should be noted that the 1967 amendments to the Selective Service Act eliminated the only substantial possibility" }, { "docid": "22010094", "title": "", "text": "Warden, M.D.Pa., 388 F.Supp. 1213 (decided December 23, 1974). The reason given by the Parole Board for its decision to deny parole was that petitioner’s release at this time would depreciate the seriousness of the offense committed and thus is incompatible with the welfare of society, 39 Fed.Reg. §§ 2.18, 2.20 (1974). See deVyver v. Warden, supra; Kohlman v. Norton, D.Conn.1974, 380 F.Supp. 1073, 1074; Wiley v. United States Board of Parole, M.D.Pa.1974, 380 F.Supp. 1194, 1197; Battle v. Norton, D.Conn.1973, 365 F.Supp. 925. Petitioner appealed pursuant to 39 Fed.Reg. § 2.25 (1974) the hearing examiner panel’s adverse parole decision to the Regional Director, who affirmed the panel’s decision on April 15, 1974. Petitioner did not then appeal to the*National Appellate Board as provided in 39 Fed.Reg. § 2.26 (1974). Decisions of the National Appellate Board constitute the final decision of the United States Parole Board. 39 Fed.Reg. § 2.26(c) (1974). Respondents request the court to dismiss the petition on the ground that relator has failed to exhaust his administrative remedies. Federal prisoners must exhaust administrative remedies before seeking habeas corpus relief. Soyka v. Alldredge, 3 Cir. 1973, 481 F.2d 303; see Waddell v. Alldredge, 3 Cir. 1973, 480 F.2d 1078. Before a federal prisoner can bring a habeas corpus proceeding which challenges an adverse decision of the United States Parole Board, he must have availed himself of the available administrative procedures for review of that decision. In the instant case petitioner admits he has not filed an appeal to the National Appellate Board as provided for in 39 Fed.Reg. § 2.26 (1974). Therefore, he has not obtained a final decision from the Parole Board. Petitioner asserts that an appeal to the National Appellate Board is not presently available to him because the Board’s regulations, 39 Fed.Reg. § 2.26 (1974), require that an appeal of the Regional Director’s decision to the National Appellate Board must be taken within thirty days after the entry of the written decision of the Regional Director, that the thirty day period has expired, and hence he has in effect exhausted all available administrative remedies. The" }, { "docid": "17911159", "title": "", "text": "appeal. (c) The National Appeals Board shall act within sixty days of receipt of the appellant’s papers, to affirm, modify, or reverse the decision. Decisions of the National Appeals Board shall be final. 28 C.F.R. §§ 2.26(a)-(c) (2006). The Supreme Court has recently described the purposes of the exhaustion requirement: The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Exhaustion of administrative remedies serves two main purposes. First, exhaustion protects administrative agency authority. Exhaustion gives an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency’s procedures. Second, exhaustion promotes efficiency. Claims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court. In some cases, claims are settled at the administrative level, and in others, the proceedings before the agency convince the losing party not to pursue the matter in federal court. And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration. Woodford v. Ngo, —■ U.S.-, 126 S.Ct. 2378, 2384-85, 165 L.Ed.2d 368 (2006) (internal citations and quotation marks omitted). Although it is well-settled that a federal prisoner must exhaust all available administrative remedies before filing a federal habeas petition, Little, 638 F.2d at 953-54, we have not declared whether § 2241 petitioners are required to attach a copy of the final decision by the administrative authority to their habeas pleadings in order to satisfy the exhaustion requirement. In Thomas v. United States Parole Comm’r, 791 F.2d 935, 1986 WL 16927 (6th Cir.1986) (unpublished table decision), we affirmed the dismissal of a habeas petition for the petitioner’s failure to exhaust administrative remedies, noting that “[p]etitioner has not shown that he exhausted his administrative remedies by appealing his parole revocation, or applying to the Director of the" } ]

[ { "docid": "18907145", "title": "", "text": "by Justice Bloom on December 10, 1973, the “Social Club” tap). Thus, only these three defendants have standing to assert that the federal taps were tainted by the delay in sealing of the two previous state taps, and only one of those three may assert sealing defects in both state taps. II Section 2518(8)(a) of Title 18, U.S.C., proscribes the use at trial of intercepted conversations or “evidence derived therefrom” unless the tape bears a judicial seal or a “satisfactory explanation” is provided for its absence. This section has been held to be equally applicable where, although a seal is present, there has been a delay in the sealing process. See United States v. Gigante, 538 F.2d 502 (2d Cir. 1976); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). The law of New York, which is applicable only to the extent it is more restrictive than federal law, see United States v. Marion, 535 F.2d 697 (2d Cir. 1976), appears to be the same. See People v. Simmons, 378 N.Y.S.2d 263, 266 (N.Y.Sup.Ct.1975). Thus, suppression of the federal tapes is warranted on behalf of the defendants D’Addario, Dituri and Faranda only if (1) there is no satisfactory explanation for the delay in sealing of the two state taps, and (2) the federal tapes constitute “evidence derived” from state taps which they have standing to challenge. As is explained below, neither of these factors is present in the instant case; accordingly, the federal tapes may not be suppressed on this ground. Having seen and heard the witnesses and considered the circumstances and the other evidence bearing on the issue, I decide and find that the delays in sealing the “Social Club” tapes were satisfactorily explained, did not derive from any purpose to obtain tactical advantages for the surveil-ling parties or the state prosecutors, and no investigative benefits were sought or obtained by the delays. There is no evidence whatsoever of tampering with the tapes from the date of the termination of the tap until the date of" } ]

[ { "docid": "4026652", "title": "", "text": "expiration of this first wiretap order — on May 15, 1991 at 9:15 a.m.— Investigator Maurizi obtained an order granting a ten-day extension of the original wiretap order. Gardephe Aff., Exh. D. On May 24, 1991, prior to the expiration of the ten-day extension period, Investigator Maurizi obtained a third wiretap order, authorizing interception for an additional twenty day period. Gardephe Aff., Exh. E. The tape recordings obtained during the first thirty days of interception were sealed on May 28, 1991. See Criminal Action Order for Sealing And Storage Of Tapes, attached as Exhibit F to Gardephe Aff., and Affidavit In Support Of Sealing Order, attached as Exhibit G. to Gardephe Aff. The sealing of the tapes at this time was entirely proper. Federal law determines whether or not the taped evidence here was sealed in a timely manner. In United States v. Vazquez, 605 F.2d 1269 (2d Cir.), 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979), a case directly on point, the Second Circuit considered a sealing challenge to tapes obtained by the Hudson County Prosecutor’s Office pursuant to a wiretap order issued by a New Jersey Superior Court judge. The Court noted “at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law.” United States v. Vazquez, 605 F.2d at 1275. “Tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed.” Id. at 1276. Most importantly, the Court held that “[u]nder federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance.” Id. (emphasis added) (citing United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 (1978) and United States v. Fury, 554 F.2d at 533). The" }, { "docid": "18438688", "title": "", "text": "scrutiny throughout the entire process of interception to insure the accuracy of the tapes and to prevent the risk of any tampering or distortion of such powerful evidence. See generally United States v. Gigante, 538 F.2d 502, 505 (2d Cir.1976); United States v. Vasquez, 605 F.2d 1269 (2d Cir.1979). Where sealing is not immediate, the tapes of surveillance will be suppressed if a “satisfactory explanation” for the delay is not provided. Gigante, supra; United States v. McGrath, 622 F.2d 36, 42 (2d Cir.1980). Although not determinative of the justification for delay, factors which have been cited include the length of the delay, Vazquez, supra; United States v. Scafidi 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); evidence of tampering, Vazquez, supra; Poeta, supra; the time required to prepare the tapes for sealing, United States v. Ricco, 421 F.Supp. 401, 408 (S.D.N.Y.1976), aff’d, 566 F.2d 433 (2d Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); and whether the defendants were prejudiced by the delay, Scafidi, supra; McGrath, supra. There is an affirmative and heavy burden on the government to establish the sufficiency of the explanation for any delay. McGrath, supra; Vazquez, supra. The government and defendants disagree both as to the length of the delays involved here and the justification for those delays. The chart below provides a summary of the relevant parties and delays: PARTIES OFFENSES BEGUN ENDED SEALED 1. Angelo Ruggiero John Giotti Frank Guidice Jackie Cavallo 18 U.S.C. 371, 892, 894, 1955(a), 1962(c) 11/9/81 12/1/81 12/2/81 2. Angelo Ruggiero John Giotti Eugene Giotti 18 U.S.C. 371, 892, 894, 1955(a), 1962(c) 2/4/82 3/6/82 3/11/82 3. Angelo Ruggiero John Giotti Eugene Giotti 18 U.S.C. 371, 892, 894, 1955(a), 1962(c) 2/4/82 3/6/82 3/11/82 4. Angelo Ruggiero Eugene Giotti Jphn Carneglia John Giotti 18 U.S.C. 371, 892, 894, 1955(a), 1962(c), 21 U.S.C. 846, 841 4/5/82 5/5/82 5/19/82 5. Angelo Ruggiero John Giotti Eugene Giotti John Carneglia Edward Lind John Conroy 18 U.S.C. 371, 892, 894, 1510, 1955(a), 1962(c), 21 U.S.C. 841, 846, 100.10, 105.15, 125.25 Penal Law" }, { "docid": "5252518", "title": "", "text": "406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972); the time required to duplicate, label, check and prepare the tapes for sealing, United States v. Ricco, 421 F.Supp. 401, 408 (S.D.N.Y.1976), aff’d 566 F.2d 433 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); and whether the defendants were prejudiced by the delay. United States v. Scafidi, supra. Needless to say, section 2518 was not intended to bar use of wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith. The statute imposes an affirmative responsibility on the Government. See United States v. Vazquez, supra. Here, however, given that the delay was relatively short and included one weekend, and that no evidence of prejudice or foul play was presented, we accept as satisfactory the Government’s explanation that it was “reasonably necessary” to transport the tapes from Binghamton to Albany for duplication and processing, and thence to Auburn for sealing. IV Appellant McGrath argues that it was error for the trial judge to permit the Government to play composite tapes of intercepted telephone calls for the jury. Although the entire tapes were received in evidence, a single recording composed of portions of a number of separately recorded conversations was played. Here McGrath waived his right to appeal by failing to object properly to the composite tape below. The trial transcript clearly shows that although McGrath made a request, which was properly denied, that the tapes not be played at all, he never objected to the composite tape as such or requested that the tapes be played in their entirety. McGrath failed entirely to argue, let alone demonstrate, that the composite tape contained misleading portions, invited erroneous inferences, or created a false or misleading impression. Under these circumstances, we will not hear McGrath to object at this time. See generally United States v. Rubin, 609 F.2d 51, 61-63 (2d Cir. 1979), cert. granted, - U.S. -, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980); see also United States v. Maultasch, 596 F.2d 19, 24 (2d Cir. 1979); United" }, { "docid": "18438693", "title": "", "text": "order, and fifteen days subsequent to the sixth order. The second and third orders have an identity of crimes and targets, and the orders involved identical surveillance techniques.- The fourth order is distinct not only because it was authorized a full month subsequent to expiration of the third order, but because it authorized the installation of a bug to overhear oral, non-wire communications, and added additional targets and crimes. Similarly the fifth and sixth orders should be viewed as extensions of the fourth order. The targets and crimes are essentially the same; the mechanism for interception and places of interception identical; and the fourth order followed the expiration of the third order by only two days. Gaps of five days and fifteen days therefore exist between the termination of the third and fourth orders and the sealing of the tapes obtained pursuant to those orders and the extensions thereof. The government, in order to avoid suppression of tapes where sealing has not been immediate, has an affirmative obligation to provide a satisfactory explanation for the delay. United States v. Gigante, supra, at 506. Although the Second Circuit has excused delays of thirteen days where “we discern on the government’s part no bad faith, no lack of diligence, and no attempt to gain an advantage over the defendants” Vazquez, supra, at 1279, “section 2518 was not intended to bar use of the wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith.” United States v. McGrath, 622 F.2d 36, 43 (2d Cir.1980). Some courts have interpreted the necessity of a satisfactory explanation as nothing more than a showing that the integrity of the tapes has not been violated. See United States v. Diana, 605 F.2d 1307, 1314 (4th Cir.1979). I read the Second Circuit cases, however, as accepting as legitimate only those delays that are a result of the administrative process of preparation of the tapes for sealing. In United States v. McGrath, supra, the court accepted as an explanation for delays of three and eight days that “it was ‘reasonably necessary’ to" }, { "docid": "5252516", "title": "", "text": "Gaetani and at least three unknown males and layoffs or wagers were placed by the unknown males and Gaetani. Additionally, balances were discussed.” English had been observed in Room 4 on at least four occasions, and those occasions coincided with the interception of gambling communications described in the affidavit. It borders on frivolity to assert that recitations such as these lack the specificity required by the Fourth Amendment. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Mapp v. Warden, 531 F.2d 1167, 1171 (2d Cir. 1976). None of the cases relied on by appellants is to the contrary. Cf. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). Ill Appellants also contend that the district court erred in denying a defense motion to suppress three wiretap tapes. The motion was grounded on an alleged failure by the Government to give satisfactory explanations for delays of three to eight days in sealing the tapes, as required by 18 U.S.C. § 2518(8)(a). See United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. 1979); United States v. Sotomayor, 592 F.2d 1219, 1221 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). We hold that the short delays were proper under section 2518. In United States v. Gigante, supra, this court held that a “satisfactory explanation” under section 2518(8)(a) is required where sealing is not immediate. The Government concedes that the sealing involved here was not immediate. Various factors here have been considered in determining whether the Government’s explanation is “satisfactory” under section 2518. These include the length of the delay, United States v. Vazquez, supra; United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); evidence of tampering, United States v. Vazquez, supra; United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied," }, { "docid": "8166481", "title": "", "text": "in a chart in the margin. The parties disagree not only as to whether the sealing delays incurred in this case were justified, they disagree as well as to how these delays are to be calculated. We note at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), cert. denied, - U.S. ——, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir. 1977) (“This is a federal prosecution, and federal law determines whether suppression is appropri ate.”). Thus, tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed. Under federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance. United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). Section 2518(5), which permits the issuance of 30-day orders and 30-day extensions, places no limit on the number of orders or extensions that may be issued to authorize continuation of a given interception, provided, of course, that all statutory conditions are met. Therefore, the duration of “the period of the order, or extensions thereof,” will depend in each case on the authorizing judge’s determination of the length of time interception is justified. And it is only the “expiration” of this “period of the order, or extensions thereof,” that triggers the sealing requirement of § 2518(8)(a). Sotomayor turned on the distinction “between procedures governing the interception of wiretap evidence and those governing the preservation of such evidence after" }, { "docid": "18848377", "title": "", "text": "requirements of § 2518(8) were not fulfilled in that no directions were contained in the order as to the care, custody or sealing of tapes and because the original intercepted tapes from the October 20, 1980 initial 30-day period were not sealed until January 23, 1981. Some defendants also maintain that they did not receive an inventory following the termination of the wiretaps. Section 2518(8) provides that “immediately upon the expiration of the period of the order, or extensions thereof, such recordings should be made available to the judge issuing such order and sealed under his direction. Custody of the recordings shall be wherever the judge orders.” Here, the tapes were sealed on January 23, 1981, three (3) days after the termination of the last intercept order (Defendant’s Exhibits 59(b) and 42). Case law clearly holds that the tapes do not have to be sealed until the end of the extension orders, i.e., at the termination of the entire surveillance. United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1976), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Vazquez, 605 F.2d 1269, 1275-76 (2d Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979). A delay of three (3) days after termination is reasonable and acceptable under the statute. United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975) (delay of fourteen (14) days with no showing of prejudice to the defendants). Defendants also contend that the initial authorization order must specify the procedures for sealing, care and custody of the tapes. The Act does not so state. Such a procedure may be prudent but there is no requirement that it be followed or included. United States v. Gigante, 538 F.2d 502, 507 (2d Cir.1976). The Government contends, and there appears nothing to contradict it, that the tapes were preserved and maintained in a manner equivalent to that in United States v. Abraham, 541 F.2d 624 (6th Cir.1976). The tapes were locked in an FBI evidence vault until" }, { "docid": "12501002", "title": "", "text": "F.2d 1307, 1315 (4th Cir.1979) (delay of thirty-nine days), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980); United States v. Lawson, 545 F.2d 557, 564-65 (7th Cir.1975) (delay of fifty-seven days), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976). In this case, the delay was fourteen days, but the tapes were actually ready for sealing in six days. Such a delay is similar to or less than that approved in other cases. The unavailability of the issuing or supervising judge may constitute a satisfactory explanation for a sealing delay. See United States v. Fury, 554 F.2d 522, 533 (2d Cir.1977) (six-day delay reasonably explained by unavailability of issuing judge who was on vacation), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen-day delay approved where agents assumed issuing judge must seal tapes), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). In this case, Agent George’s affidavit asserts that the judge was out of town for several days after the tapes were ready for sealing. Pedroni made no attempt to offer proof to contest this statement. The failure to seal immediately because of resource or personnel shortages has also been deemed a “satisfactory explanation.” See United States v. Massino, 784 F.2d 153 (2d Cir.1986) (fifteen-day delay permitted when government diverted personnel to investigate leak threatening investigation); United States v. Rodriguez, 786 F.2d 472 (2d Cir.1986) (fourteen-day delay permitted when supervising attorney occupied with another trial); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977) (seven-day delay permitted when prosecutor preoccupied with upcoming trial), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978). In this case Agent George stated in his affidavit that two potential witnesses in the Stowers investigation had become available at the time when the tapes were being prepared for sealing. Because Agent George was in charge of the investigation, the sealing was delayed while he interviewed these witnesses. These explanations, taken together, constitute “satisfactory explanation” for the sealing" }, { "docid": "23660797", "title": "", "text": "to minimize the interception of communications not otherwise subject to interception * * See Scott v. United States, 436 U.S. 128, 130-31, 98 S.Ct. 1717, 1719-20, 56 L.Ed.2d 168 (1978). Id. 751 F.2d at 470 (parallel citations omitted). In view of Figueroa, Scopo’s claim of overbreadth is denied. 4. Timeliness of Tape Sealing Scopo argues that the government failed to seal the tapes in a timely fashion. Under 18 U.S.C. § 2518(8)(a), recordings made pursuant to authorization of electronic surveillance are admissible as evidence as long as they were sealed at the conclusion of one continuous period of surveillance, including all extensions of the original order. Vazquez, 605 F.2d at 1276; United States v. Sotomayor, 592 F.2d 1219, 1225-26 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 268 (1979). Where the interception is of the same premises, substantially the same persons, and for the same purpose, there is only one period of electronic surveillance “regardless of the number or length of judicial orders that have been issued to authorize that surveillance.” Vazquez, 605 F.2d at 1276; accord United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); Fury, 554 F.2d at 533. Scopo concedes that there was one continuous period of interception and that the government was not required by law to seal the tapes until the end of that period. Nevertheless, Scopo contends that since the government followed the more prudent course of sealing the tapes in approximately thirty-day intervals, the government assumed an obligation to seal all the tapes in thirty-day intervals. Such an obligation would likely discourage the government from periodic sealing during the course of a lengthy investigation, a practice that is designed to insure the privacy of targets and subjects. Therefore, this Court declines to compel the government to assume such an obligation. Even if Scopo were correct that the government was required to seal the tapes at thirty-day intervals, delays of three or four days in sealing the tapes are excusable. Short delays of this kind have rarely" }, { "docid": "22350784", "title": "", "text": "Title III requirements, no reason to doubt the tapes’ integrity, and no basis for inferring any other prejudice to the defendants. Thus, in United States v. Rodriguez, we observed that [i]n most cases when (1) the government has advanced reasons for the delay, such as the need to perform administrative tasks relating to the tapes prior to sealing, (2) there is no basis for inferring that the government sought by means of the delay to gain a tactical advantage over the defendant or that it had any other improper motive, and (3) there has been no showing that there has been tampering with the tapes or that the defendant has suffered any other prejudice as a result of the delay, the government’s explanation has been accepted as satisfactory. 786 F.2d at 477; see id. at 477-78 (listing cases and explanations deemed satisfactory); United States v. Massino, 784 F.2d at 157 (same). Bona fide administrative obstacles may provide an acceptable excuse. See, e.g., id. at 158 (where possibility of leak that threatened large-scale organized crime investigation could not be foreseen, insufficient resources to handle leak and prepare tapes for sealing was satisfactory explanation for 15-day delay); United States v. McGrath, 622 F.2d at 42-43 (explanation that tapes had to be moved from Binghamton to Albany to Auburn, New York, deemed satisfactory excuse for “relatively short” delays of three-to-eight days that included a weekend); United States v. Vazquez, 605 F.2d at 1279-80 (explanation that there were equipment breakdowns, a shortage of Spanish-speaking agents to translate conversations, and a large number of tapes needing duplication, labeling, and checking was deemed satisfactory excuse for 7- to 13-day delay where there was no evidence of bad faith or lack of diligence); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977) (explanation that prosecutor was preoccupied with imminent trial deemed satisfactory for seven-day delay where there was no indication of bad faith or attempt to evade statutory requirements), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 & 401 (1978). In addition, delays based on the government’s erroneous understanding of Title Ill’s requirements" }, { "docid": "12501003", "title": "", "text": "judge was out of town for several days after the tapes were ready for sealing. Pedroni made no attempt to offer proof to contest this statement. The failure to seal immediately because of resource or personnel shortages has also been deemed a “satisfactory explanation.” See United States v. Massino, 784 F.2d 153 (2d Cir.1986) (fifteen-day delay permitted when government diverted personnel to investigate leak threatening investigation); United States v. Rodriguez, 786 F.2d 472 (2d Cir.1986) (fourteen-day delay permitted when supervising attorney occupied with another trial); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977) (seven-day delay permitted when prosecutor preoccupied with upcoming trial), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978). In this case Agent George stated in his affidavit that two potential witnesses in the Stowers investigation had become available at the time when the tapes were being prepared for sealing. Because Agent George was in charge of the investigation, the sealing was delayed while he interviewed these witnesses. These explanations, taken together, constitute “satisfactory explanation” for the sealing delay. Pedroni asserts, nonetheless, that the district court was compelled to conduct an evidentiary hearing on the matter. No reported case addresses the issue of when an evidentiary hearing is required when a defendant moves to suppress evidence under 18 U.S.C. § 2518(8)(a). Rios states that all of the government’s proffered satisfactory explanations must be submitted to the district court, Rios 110 S.Ct. at 1851, but does not exclude the possibility that the issue may be resolved on the basis of affidavits alone. We think that the test in United States v. Licavoli, 604 F.2d 613 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980) applies to suppression motions under § 2518(8)(a). Licavoli held that “[a]n evidentiary hearing on a motion to suppress ordinarily is required if ‘the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.’ ” Id. at 621 (quoting United States v. Ledesma, 499 F.2d 36," }, { "docid": "22350785", "title": "", "text": "could not be foreseen, insufficient resources to handle leak and prepare tapes for sealing was satisfactory explanation for 15-day delay); United States v. McGrath, 622 F.2d at 42-43 (explanation that tapes had to be moved from Binghamton to Albany to Auburn, New York, deemed satisfactory excuse for “relatively short” delays of three-to-eight days that included a weekend); United States v. Vazquez, 605 F.2d at 1279-80 (explanation that there were equipment breakdowns, a shortage of Spanish-speaking agents to translate conversations, and a large number of tapes needing duplication, labeling, and checking was deemed satisfactory excuse for 7- to 13-day delay where there was no evidence of bad faith or lack of diligence); United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977) (explanation that prosecutor was preoccupied with imminent trial deemed satisfactory for seven-day delay where there was no indication of bad faith or attempt to evade statutory requirements), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 & 401 (1978). In addition, delays based on the government’s erroneous understanding of Title Ill’s requirements may be excusable if the law has not been settled and the misunderstanding is not otherwise unreasonable. In Rios, which concerned the satisfactoriness of the government’s explanation for the delays in sealing certain Levittown and Vega Baja public telephone tapes in the present prosecution, the excuse advanced by the government was that the supervising attorney believed he did not have to seek a judicial sealing of the tapes until “there was a meaningful hiatus in the investigation as a whole,” i.e., until not only the original order but also all extensions of that order had expired. 110 S.Ct. at 1851. The Supreme Court noted that [i]n establishing a reasonable excuse for a sealing delay, the Government is not required to prove that a particular understanding of the law is correct but rather only that its interpretation was objectively reasonable at the time. Id. Noting that the government’s interpretation was not unreasonable in light of the then-state of the law of this Circuit, (which we note remains undefined, see, e.g., United States v. Badalamenti, 794 F.2d" }, { "docid": "5252517", "title": "", "text": "the Government to give satisfactory explanations for delays of three to eight days in sealing the tapes, as required by 18 U.S.C. § 2518(8)(a). See United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir. 1979); United States v. Sotomayor, 592 F.2d 1219, 1221 (2d Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). We hold that the short delays were proper under section 2518. In United States v. Gigante, supra, this court held that a “satisfactory explanation” under section 2518(8)(a) is required where sealing is not immediate. The Government concedes that the sealing involved here was not immediate. Various factors here have been considered in determining whether the Government’s explanation is “satisfactory” under section 2518. These include the length of the delay, United States v. Vazquez, supra; United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); evidence of tampering, United States v. Vazquez, supra; United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972); the time required to duplicate, label, check and prepare the tapes for sealing, United States v. Ricco, 421 F.Supp. 401, 408 (S.D.N.Y.1976), aff’d 566 F.2d 433 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); and whether the defendants were prejudiced by the delay. United States v. Scafidi, supra. Needless to say, section 2518 was not intended to bar use of wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith. The statute imposes an affirmative responsibility on the Government. See United States v. Vazquez, supra. Here, however, given that the delay was relatively short and included one weekend, and that no evidence of prejudice or foul play was presented, we accept as satisfactory the Government’s explanation that it was “reasonably necessary” to transport the tapes from Binghamton to Albany for duplication and processing, and thence to Auburn for sealing. IV Appellant McGrath argues that it was error for the trial" }, { "docid": "18438687", "title": "", "text": "to which any aggrieved party may object. This argument fails because the statutory minimization requirement is a necessary concomitant of every surveillance order. 28 U.S.C. § 2518(5). Assuming the greater precision of a minimization requirement in the order at issue, the more stringent requirements do not confer additional rights upon those with no privacy interest in the place of surveillance. This Circuit has held consistently that a minimization claim, whether based upon § 2518(5) or the order itself, may be raised only by one with a privacy interest in the place of surveillance. Fury, supra; Poeta, supra. Merely being an aggrieved party does not confer standing to raise a challenge based on minimization. 4. Sealing Massino and Vitale also claim that the tapes of surveillance were not sealed “immediately” as required by 18 U.S.C. § 2518(8)(a). The statute states: “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” Id. The purpose of this judicial scrutiny throughout the entire process of interception to insure the accuracy of the tapes and to prevent the risk of any tampering or distortion of such powerful evidence. See generally United States v. Gigante, 538 F.2d 502, 505 (2d Cir.1976); United States v. Vasquez, 605 F.2d 1269 (2d Cir.1979). Where sealing is not immediate, the tapes of surveillance will be suppressed if a “satisfactory explanation” for the delay is not provided. Gigante, supra; United States v. McGrath, 622 F.2d 36, 42 (2d Cir.1980). Although not determinative of the justification for delay, factors which have been cited include the length of the delay, Vazquez, supra; United States v. Scafidi 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); evidence of tampering, Vazquez, supra; Poeta, supra; the time required to prepare the tapes for sealing, United States v. Ricco, 421 F.Supp. 401, 408 (S.D.N.Y.1976), aff’d, 566 F.2d 433 (2d Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); and whether the defendants were prejudiced" }, { "docid": "8166490", "title": "", "text": "justified. This on-going evaluation of the conversations intercepted made further demands on the personnel and equipment available. Finally, the fact that over 200 reels of tape required duplicating, labeling, and checking made difficult the-prompt preparation of the tapes for sealing. Although the question is close, in our view the circumstances just detailed provide a satisfactory explanation for the 7 to 13 day sealing delays. When the wiretaps were first instituted, the government had reason to believe that the investigation would be quickly concluded, as their information indicated that a drug shipment was due to arrive in the area. Had the evidence needed been gathered during the first week or two of surveillance, perhaps the personnel and equipment on which the project depended would have been able to handle the necessary monitoring, duplication and transcription without incurring delays in sealing. In the circumstances of this case, where we discern on the government’s part no bad faith, no lack of diligence, and no attempt to gain an advantage over the defendants, we believe that the government’s lack of foresight regarding the actual scope of the investigation does not justify the exclusion of probative evidence lawfully obtained. Congress has explicitly established “two possible prerequisites to the use of wiretap evidence — the presence of a judicial seal, or a satisfactory explanation of its absence . .” United States v. Gigante, supra, 538 F.2d at 506 (emphasis added). Unless we are to read the second alternative out of the statute, we must decide in each case whether the explanation tendered can be deemed “satisfactory.” In the instant case, although the delays were not miniscule, neither were they of Gigante proportions. In this Circuit delays of comparable length have been deemed excusable in some circumstances and inexcusable in others. Compare United States v. Scafidi, supra, 564 F.2d 633 (7-day delay excused); United States v. Fury, supra, 554 F.2d at 533 (6-day delay excused); United States v. Poeta, 455 F.2d 117 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (13-day delay excused); United States v. Aloi, 449 F.Supp. 698 (E.D.N.Y.1977)" }, { "docid": "11658077", "title": "", "text": "a prerequisite for the use or disclosure of the contents of any wire or oral commu-nication____” In United States v. Gi-gante, 538 F.2d 502, 507 (2d Cir.1976), we held that a “satisfactory explanation is required, not only for total failure to seal the tapes, but for failure to seal the tapes ‘immediately’ as well.” In that case, we affirmed the exclusion of evidence where the delays in sealing ranged from eight months to over a year. See also United States v. Vazquez, 605 F.2d 1269, 1278 (2d Cir.1979), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1980) (delay beyond one or two days calls for explanation). The wiretap orders in this case permitted electronic surveillance of Venuti’s apartment and telephone and the telephone in Mannino’s barbershop. District Judge Irving Ben Cooper authorized the first Venuti tape for a 30-day period beginning on October 1, 1984, but extended it for another 30 days, until November 30. Badalamenti did not seek to suppress evidence obtained under the first Venuti tap. As to the extension, the government concedes that interception ceased on November 16. Tapes obtained under this tap were sealed on December 7, seven days after the expiration date and 21 days after interception terminated. The Mannino tap, authorized on November 8, expired on December 8; those tapes were sealed on December 21, 13 days after expiration. Defendants moved to suppress the evidence obtained under the Venuti extension and the Mannino order, claiming that the government had failed to seal these tapes immediately, as section 2518(8)(a) requires. Based on his construction of the statutory phrase, “the expiration of the period of the order,” the district judge calculated the delay from the date that the orders expired. Accordingly, he charged the government with seven- and 13-day delays and then considered whether the government had provided the “satisfactory explanation” required by the statute. The government initially attributed the delays solely to the heavy workload of the Assistant United States Attorney responsible for sealing, Daniel Perlmutter (sometimes hereafter, the AUSA), but later cited a combination of his workload, illness, marital problems and" }, { "docid": "23660798", "title": "", "text": "Vazquez, 605 F.2d at 1276; accord United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); Fury, 554 F.2d at 533. Scopo concedes that there was one continuous period of interception and that the government was not required by law to seal the tapes until the end of that period. Nevertheless, Scopo contends that since the government followed the more prudent course of sealing the tapes in approximately thirty-day intervals, the government assumed an obligation to seal all the tapes in thirty-day intervals. Such an obligation would likely discourage the government from periodic sealing during the course of a lengthy investigation, a practice that is designed to insure the privacy of targets and subjects. Therefore, this Court declines to compel the government to assume such an obligation. Even if Scopo were correct that the government was required to seal the tapes at thirty-day intervals, delays of three or four days in sealing the tapes are excusable. Short delays of this kind have rarely compelled suppression. See, e.g., United States v. McGrath, 622 F.2d 36, 43 (2d Cir.1980) (eight day delay excused where there was no evidence of prejudice to defendant or foul play); Vazquez, 605 F.2d at 1279 (seven to thirteen day delays excused where no bad faith on part of the government was found); Scafidi, 564 F.2d at 641 (seven day delay excused since it was not the result of any attempt to avoid sealing requirement or gain a tactical advantage); Fury, 554 F.2d at 533 (six days excused); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen days excused), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972); see also United States v. Diana, 605 F.2d 1307, 1315-16 (4th Cir. 1979) (delay of thirty-nine days did not require suppression), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980); United States v. Angelini, 565 F.2d 469, 472-73 (7th Cir.1977) (delays of nine to twenty-six days in sealing did not require suppression), cert. denied, 435 U.S. 923, 98 S.Ct. 1487," }, { "docid": "18438694", "title": "", "text": "delay. United States v. Gigante, supra, at 506. Although the Second Circuit has excused delays of thirteen days where “we discern on the government’s part no bad faith, no lack of diligence, and no attempt to gain an advantage over the defendants” Vazquez, supra, at 1279, “section 2518 was not intended to bar use of the wiretaps only when the defendant can show prejudice or present evidence of tampering or other governmental bad faith.” United States v. McGrath, 622 F.2d 36, 43 (2d Cir.1980). Some courts have interpreted the necessity of a satisfactory explanation as nothing more than a showing that the integrity of the tapes has not been violated. See United States v. Diana, 605 F.2d 1307, 1314 (4th Cir.1979). I read the Second Circuit cases, however, as accepting as legitimate only those delays that are a result of the administrative process of preparation of the tapes for sealing. In United States v. McGrath, supra, the court accepted as an explanation for delays of three and eight days that “it was ‘reasonably necessary’ to transport the tapes from Binghamton to Albany for duplication and processing, and thence to Auburn for sealing.” Id. at 43. Similarly, in United States v. Vazquez, supra, the court examined the shortages in government personnel, the frequent failure of the machinery being used, and the fact that over 200 reels of tape required duplicating, labeling and checking, in concluding that “although the question is close, in our view the circumstances just detailed provide a satisfactory explanation for the 7 to 13 day sealing delays.” Id. at 1279. And in United States v. Poeta, supra, the court excused a thirteen day delay where confusion with respect to New York law led the investigating authorities to believe that only the judge who had authorized the surveillance, and who was on vacation at the time, could seal the tapes. In United States v. Fury, supra, the court held that a six day delay was justified where the District Attorney’s efforts to have the issuing State Justice seal the tapes were stymied by the Justice’s vacation. Id. at 533." }, { "docid": "4026653", "title": "", "text": "the Hudson County Prosecutor’s Office pursuant to a wiretap order issued by a New Jersey Superior Court judge. The Court noted “at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law.” United States v. Vazquez, 605 F.2d at 1275. “Tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed.” Id. at 1276. Most importantly, the Court held that “[u]nder federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance.” Id. (emphasis added) (citing United States v. Scafidi, 564 F.2d 633, 641 (2d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 (1978) and United States v. Fury, 554 F.2d at 533). The Second Circuit further noted that Federal law “places no limit on the number of [thirty-day wiretap] orders or extension orders that may be issued to authorize continuation of a given interception.” United States v. Vazquez, 605 F.2d at 1276; see also 18 U.S.C. § 2518(5). Moreover, sealing requirements are triggered only upon the expiration of the “ ‘period of the [wiretap] order, or extensions thereof.’ ” Id. The Court then turned to the precise issue raised by Cleary here: whether tapes obtained pursuant to New Jersey wiretap law must be sealed immediately after the expiration of the initial twenty-day authorization and ten-day extension, where continuous interception continued pursuant to orders issued after the expiration of the ten-day extension order. The Court noted that “[i]n contrast to the federal act [which provides for thirty day orders and extensions], the New Jersey statute permits issuance only of 20-day orders and 10-day extensions.” The Court stated that “New Jersey’s policy choice regarding the authorization of continuous wiretaps cannot logically be viewed as affecting the approach to be taken" }, { "docid": "23660799", "title": "", "text": "compelled suppression. See, e.g., United States v. McGrath, 622 F.2d 36, 43 (2d Cir.1980) (eight day delay excused where there was no evidence of prejudice to defendant or foul play); Vazquez, 605 F.2d at 1279 (seven to thirteen day delays excused where no bad faith on part of the government was found); Scafidi, 564 F.2d at 641 (seven day delay excused since it was not the result of any attempt to avoid sealing requirement or gain a tactical advantage); Fury, 554 F.2d at 533 (six days excused); United States v. Poeta, 455 F.2d 117, 122 (2d Cir.) (thirteen days excused), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972); see also United States v. Diana, 605 F.2d 1307, 1315-16 (4th Cir. 1979) (delay of thirty-nine days did not require suppression), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980); United States v. Angelini, 565 F.2d 469, 472-73 (7th Cir.1977) (delays of nine to twenty-six days in sealing did not require suppression), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978); United States v. Lilia, 534 F.Supp. 1247 (N.D.N.Y. 1982) (delay of sixteen days in sealing did not require suppression), rev’d on other grounds, 699 F.2d 99 (2d Cir.1983). Accordingly, Scopo’s claim that tapes of intercepted conversations were not sealed in timely fashion is without merit. 5. Scopo — Insufficient Specificity of Order Scopo contends that the government failed to name him early enough in any of the orders authorizing the Title III interceptions and therefore, conversations intercepted pursuant to the order should be suppressed. The Supreme Court, however, has made it clear that this does not warrant suppression of the tapes. In United States v. Donovan, 429 U.S. 413, 437 n. 25, 97 S.Ct. 658, 673 n. 25, 50 L.Ed.2d 652 (1977), the Supreme Court stated: Even if we assume that Congress thought that a broad identification requirement was constitutionally mandated, it does not follow that Congress imposed statutory suppression under §§ 2515 and 2518(10)(a)(i) as a sanction for noncompliance. In limiting use of the intercept procedure to “the most precise" } ]

[ { "docid": "17354478", "title": "", "text": "under the Supremacy Clause. Id., 402 U.S. at 656, 91 S.Ct. at 1714. Thus the Perez decision, which section 525 of the Bankruptcy Act codifies, specifically left open the issue we now consider: whether bankrupts who have discharged an accident-related judgment can be required, as a condition to the restoration of driving privileges suspended prior to the bankruptcy, to post evidence of financial responsibility. The legislative history indicates that section 525 was intended by Congress to incorporate further refinements of the Perez doctrine: [T]he enumeration of various forms of discrimination against former bankrupts is not intended to permit other forms of discrimination. The courts have been developing the Perez rule. This section permits further development to prohibit actions by governmental or quasi-governmental organizations that perform licensing functions, such as a State bar association or a medical society, or by other organizations that can seriously affect the debtors’ livelihood or fresh start.... S.Rep. No. 989, supra, at 81, 1978 U.S. Code & Ad.News at 5867. It appears that section 525 is intended to ensure that bankrupts are not deprived of a “fresh start” because of governmental discrimination against them, based “solely” on the bankruptcy. Senate Report 989 specifies that “the effect of ... section [525], and of further interpretations of the Perez rule, is to strengthen the anti-reaffirmation policy found in section 524(b). Discrimination based solely on nonpayment could encourage reaffirmations, contrary to the expressed policy.” Id. The House further noted regarding Section 525: [T]he purpose of the section is to prevent an automatic reaction against an individual for availing himself of the protection of the bankruptcy laws. Most bankruptcies are caused by circumstances beyond the debtor’s control. To penalize a debt- or by discriminatory treatment as a result is unfair and undoes the beneficial effects of the bankruptcy laws. However, in those cases where the causes of a bankruptcy are intimately connected with the license, grant, or employment in question, an examination into the circumstances surrounding the bankruptcy will permit governmental units to pursue appropriate regulatory policies and take appropriate action without running afoul of bankruptcy policy. H.R.Rep. No. 595," } ]

[ { "docid": "13949574", "title": "", "text": "section 362(a)(6), which stays “any act to collect” a prepetition claim. Surely the word “collect” is not to be given a narrow, legal-action type of meaning. The injunc-tive effect given by section 524(a) to an order of discharge is set out in similar language and forbids “an act[,] to collect” a discharged debt “as a personal liability of the debtor.” Contradictory of the two court views, is the following legislative explanation of section 362(a)(6): Paragraph (6) prevents creditors from attempting in any way to collect a pre-petition debt. Creditors in consumer cases occasionally telephone debtors to encourage repayment in spite of bank ruptcy. Inexperienced, frightened, or ill-counseled debtors may succumb to suggestions to repay notwithstanding their bankruptcy. This provision prevents evasion of the purpose of the bankruptcy laws by sophisicated creditors. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 342 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 50-51 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5836, 5837, 6298. In the Callender case, the credit union threatened to close the debtor’s “share and share draft account,” after having written to the debtor suggesting that the debtor’s chapter 13 composition plan be modified to provide for a 100% payment of only its unsecured claim, a provision previously rejected by both the trustee and the court. See section 1322(b)(1). The letter was sent to the debtor’s attorney to be forwarded to the debtor. The bankruptcy court found no violation of section 362(a)(6) or of the antidiscrimination provisions of section 525(b), citing In re Norton, 867 F.2d 313 (6th Cir.1989), and the “mildly worded” letter language from the Brown case (851 F.2d 81, 84). In the earlier Green case, the credit union had attempted to include in a “reaffirmation agreement” on the debtor’s automobile debt an additional unsecured debt owed to it by the debtor. After repossessing her automobile, the credit union obtained payment by the debtor of the unsecured debt and expenses of repossession of the vehicle and furnished the debtor with a “reaffirmation agreement” on the secured debt only. The bankruptcy court correctly characterized the creditor’s conduct as a violation" }, { "docid": "12811089", "title": "", "text": "are conceptually inconsistent with the Third Circuit’s reading of § 525. These eases in effect equate discharge of the debt with payment of the debt when the creditor is a governmental entity. See D. Keating, Offensive Uses of the Bankruptcy Stay, 45 Vand. L.Rev. 71, 101-106 (1992). As such, they go beyond the harm sought to be ameliorated in Perez, the result of which is codified as § 525(a). In Perez, the Supreme Court held that the state could not refuse to renew a driver’s license for nonpayment of a tort judgment that had been discharged in bankruptcy. A contrary result was inconsistent with the fresh start principles of a bankruptcy discharge. Notably the debtor did not seek relief from the judgment creditor, whose coercive action was prohibited by §§ 362 and 524, but rather the government that was conditioning the availability of a license on the existence of the unpaid judgment. Thus, the issue in § 525(a) is not collection of discharged debt, ably dealt with in other sections, but refusal to deal with the debtor because of his bankruptcy and its consequences. While there is no proscription on a private party’s refusal to deal, there is such a prohibition when the party is a governmental entity and the dealings are in the nature of licenses, permits, charters, franchises or similar grants for due to the exclusivity of those benefits, their absence will impair the debtor’s fresh start. Instructive in defining the parameters of § 525(a) is the analysis of my colleague Judge Bruce Fox in In re Saunders, 105 B.R. 781 (Bankr.E.D.Pa.1989). Recognizing that § 525(a) was not intended to be another manifestation of the automatic stay and finding support for his view in Perez, he stated: Section 525(a) instead was intended to reach non-creditor governmental (or quasi- governmental) entities that, in their quest to protect the public interest, wrongfully discriminate against debtors and frustrate the “fresh start” policy of the bankruptcy code by denying property interests not obtainable through the private sector. Cf. In re Exquisito Services, Inc., 823 F.2d 151 (5th Cir.1987) (while § 525(a) does" }, { "docid": "4638065", "title": "", "text": "for against governmental units (§ 525(a)) to “private employers.” Here, it is not alleged that debtor was an employee of the Credit Union, the creditor against whom relief is sought. Nevertheless, we hold that the actions of the Credit Union are subject to § 525(b), because in order to interpret the intended scope of this clause, it is necessary to pay attention to the further language therein, “discriminate with respect to employment.” Credit unions, as is true for the Credit Union here involved, commonly have an affiliation with a particular employer, in this case the United States Postal Service. Their services are offered to, and limited to, employees of a particular employer. The term “employer” in the present context should be given a broad reading, not bound by conventional state law concepts. In re McNeely, 82 B.R. 628 (Bankr.S.D.Ga.1987). Where the right to access to such services is denied an employee of that employer, plainly such action is discriminatory. We must address the question of whether such discrimination is barred by § 525(b). We are compelled to conclude that it does not. The key fact which requires this conclusion is that it is not only those employees of the Postal Service who cause loss to the Credit Union by filing bankruptcy who are deprived of the services of the Credit Union, but employees who cause loss by any means who are so disadvantaged. In such a fact configuration, a violation of § 525 does not occur. In re Norton, 867 F.2d 313, 317 (6th Cir.1989); In re Brown, 851 F.2d 81, 86 (3rd Cir.1988) (holding no violation where “policy applied to all defaulting debtors, whether or not the debts were discharged in bankruptcy.”). Debtor’s motion for contempt is denied. The temporary restraining order entered February 1, 1989 is vacated. So Ordered." }, { "docid": "4638063", "title": "", "text": "here, § 362(a)(6), which imposes a stay against any act to collect a pre-filing claim, and § 525(b)(3), which forbids a “private employer from discriminating ‘with respect to employment’ against a debtor because he has not paid a discharge-able debt.” 1. Section 362(a)(6). The actions of the Credit Union may be simply stated, that it notified debtor that it was going to terminate its relationship with debtor because the treatment of the Credit Union under debtor’s Chapter 13 plan would result in a loss to the Credit Union and the Credit Union informed debtor that he could avoid this termination of services if he repaid the debt in full. The pertinent statutory language provides that the automatic stay of § 362 applies to: (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; A question of statutory interpretation is here presented. The question is whether the notification and suggestion by the Credit Union amounted to an “act to collect”. We agree with, and accept the view of the Third Circuit Court of Appeals that it does not. In re Brown, 851 F.2d 81, 84 (3rd Cir.1988). There the Court held that a letter very similar to that sent to debtor’s counsel by the Credit Union in the present case was “mildly worded”, not coercive, and therefore not violative of the statute. 2. Section 525(b)(3). This -Code section provides: § 525. Protection against discriminatory treatment. * * * * * * (b) No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt— ****** (3) has not paid a debt that is dis-chargeable in a case under this title or that was discharged under the Bankruptcy Act. This portion of § 525 of the Bankruptcy Code was adopted in 1984 to extend the prohibition against discrimination theretofore provided" }, { "docid": "13949575", "title": "", "text": "draft account,” after having written to the debtor suggesting that the debtor’s chapter 13 composition plan be modified to provide for a 100% payment of only its unsecured claim, a provision previously rejected by both the trustee and the court. See section 1322(b)(1). The letter was sent to the debtor’s attorney to be forwarded to the debtor. The bankruptcy court found no violation of section 362(a)(6) or of the antidiscrimination provisions of section 525(b), citing In re Norton, 867 F.2d 313 (6th Cir.1989), and the “mildly worded” letter language from the Brown case (851 F.2d 81, 84). In the earlier Green case, the credit union had attempted to include in a “reaffirmation agreement” on the debtor’s automobile debt an additional unsecured debt owed to it by the debtor. After repossessing her automobile, the credit union obtained payment by the debtor of the unsecured debt and expenses of repossession of the vehicle and furnished the debtor with a “reaffirmation agreement” on the secured debt only. The bankruptcy court correctly characterized the creditor’s conduct as a violation of the provisions of both section 362(a) and section 524(a). In some of the cases referred to, the creditor has attempted to justify its debt-collection efforts by stating that it shuns equally any member who causes it loss— bankrupt or nonbankrupt. This may carry some weight in regard to an alleged violation of the antidiscrimination provisions of section 525(b), but it has no relevance here. A creditor’s consistent policy to collect all debts owed to it, whether owed by a bankruptcy petitioner or other debtor, would be nondiscrimatory, but as applied to this debtor and two dischargeable, unsecured debts, the policy would violate the injunctive provisions of both section 362(a)(6) and of section 524(a). Even the least sensitive notion of good faith dealings would condemn an effort of a creditor to put a debtor in default on a debt by refusing the debtor’s payment; and this Court is under no duty to grant any relief to the movant in such circumstances. The Court, however, is not required at this time to determine whether, under the" }, { "docid": "1104235", "title": "", "text": "regarding the affidavits and the fees requested by the plaintiffs. If the RTC does request a rehearing within ten days, the plaintiffs need not file affidavits regarding their attorney’s fees until the further order of the court. Once the court has dealt with any motion for rehearing which is filed and the issue of attorney’s fees, a final judgment will be entered by the court. . The effect of confirmation is governed by 11 U.S.C. § 1141. Section (a) binds the debtor and creditor to the terms of the confirmed plan. Section (d) discharges the reorganized debtor from any debt that arose before the order for relief unless the plan provides for that debt. Section 524(a) provides, in pertinent part, that a discharge \"operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived ...” . Before section 362(h) was added to the Bankruptcy Code in the Bankruptcy Amendments and Federal Judgeship Act of 1984, there was no express cause of action for violations of the automatic stay. Nevertheless, many courts awarded damages to compensate debtors for losses suffered as a result of the automatic stay. See In re Computer Communications, Inc., 824 F.2d 725, 731 (9th Cir.1987) and citations therein. . 11 U.S.C. § 105 provides that “the court may issue any order, process or judgment that is necessary or appropriate to cany out the provisions\" of the Bankruptcy Code. There has been considerable debate about whether bankruptcy courts have contempt power under this section. However, the Fourth Circuit has held that § 105 authorizes the bankruptcy court to find a party in civil contempt. In re Walters, 868 F.2d 665 (4th Cir.1989). . The court recognizes that the complaint in this adversary proceeding did not specifically claim that the defendants should be held in contempt. It is clear, however, that the complaint stated the essential facts and the violations charged in a manner which provided notice" }, { "docid": "7053493", "title": "", "text": "for the Department to anticipate the discharge in bankruptcy in order to maintain driving privileges. Having interpreted the Tennessee law, we must ascertain the construction of the relevant provision of the Bankruptcy Code. Section 525(a) of the Bankruptcy Code protects a person who has been a debtor under the Code or a bankrupt or debtor under the prior Bankruptcy Act from discriminatory treatment by a governmental unit. This section, which is a codification of Perez, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), is designed to prevent governmental units from frustrating the fresh start policy of the Code by discriminating against persons who have been debtors under the Code or the prior Bankruptcy Act. This court concluded that “section 525 is intended to ensure that bankrupts are not deprived of a ‘fresh start’ because of governmental discrimination against them, based ‘solely’ on the bankruptcy.” Duffey v. Dollison, 734 F.2d 265, 271 (6th Cir.1984). Section 525 “ ‘prevents] the government either from denying privileges to individuals solely as a reaction to their filing bankruptcy or from conditioning the grant of privileges on the bankrupt’s reaffirmation of certain debts.’ ” Duffey, 734 F.2d at 271 (quoting district court). The bankruptcy and district courts held that TFRA, as applied to Norton, violated § 525(a) of the Bankruptcy Code. After reviewing the facts and the two statutes, we disagree. Although § 525(a) prohibits the state from penalizing those who choose the protection bankruptcy offers and the benefits of its “fresh start” policy, it does not require the state to ignore the prior existence of a bank rupt’s debt in all circumstances. In Duffey, we held that the Ohio Financial Responsibility Act (OFRA) did not interfere with § 525(a). OFRA recognized the debt’s discharge through bankruptcy, but it required a showing of future financial responsibility in order to reinstate driving privileges. Duffey, 734 F.2d at 274. We held that OFRA did not discriminate because it applied the same conditions to all debtors who failed to satisfy a driving-related debt. It was for this reason that the bankruptcy and district courts held in the" }, { "docid": "13949576", "title": "", "text": "of the provisions of both section 362(a) and section 524(a). In some of the cases referred to, the creditor has attempted to justify its debt-collection efforts by stating that it shuns equally any member who causes it loss— bankrupt or nonbankrupt. This may carry some weight in regard to an alleged violation of the antidiscrimination provisions of section 525(b), but it has no relevance here. A creditor’s consistent policy to collect all debts owed to it, whether owed by a bankruptcy petitioner or other debtor, would be nondiscrimatory, but as applied to this debtor and two dischargeable, unsecured debts, the policy would violate the injunctive provisions of both section 362(a)(6) and of section 524(a). Even the least sensitive notion of good faith dealings would condemn an effort of a creditor to put a debtor in default on a debt by refusing the debtor’s payment; and this Court is under no duty to grant any relief to the movant in such circumstances. The Court, however, is not required at this time to determine whether, under the circumstances of this case, the filing of the creditor’s motion for relief from the stay is, of itself, harassive and, therefore, coercive and, thus, a violation of that stay. A separate order will be entered. . Compare the congressional statement below, as to the intent and purpose of section 524(a), with the Third and Ninth Circuit views of permissible creditor efforts to collect prepetition debts, notwithstanding section 362(a)(6): The injunction is to give complete effect to the discharge and to eliminate any doubt concerning the effect of the discharge as a total prohibition on debt collection efforts. This paragraph has been expanded over a comparable provision in Bankruptcy Act § 14f to cover any act to collect, such as dunning by telephone or letter, or indirectly through friends, relatives, or employers, harassment, threats of repossession, and the like. The change is consonant with the new policy forbidding binding reaffirmation agreements under proposed 11 USC 524(d), and is intended to insure that once a debt is discharged, the debtor will not be pressured in any way" }, { "docid": "18598067", "title": "", "text": "524(a)(2), and 525, and seeking injunctive relief and damages. The bankruptcy court found that the letter did not violate the Code’s antidiscrimination provision, section 525, because this provision applies only to governmental units. It also rejected her claim that the letter was an attempt to collect a discharged debt in violation of section 524(a)(2) on the ground that the section does not require a creditor to continue to do business with a debtor. Finally, although the bankruptcy court found that the letter violated the automatic stay, section 362(a)(6), it refused to impose any damages against the Credit Union because the letter constituted only a technical violation of the provision. The district court reversed the bankruptcy court’s decision as to the violation of the automatic stay. The court found that the letter was an attempt to collect on a prepetition debt, and that the attempt was more than a technical violation of section 362(a)(6). After stating that it did not believe punitive damages were appropriate, it remanded the case to the bankruptcy court for a determination of damages under section 362(h). II. Before this court may reach the merits of this case, we must determine whether we have jurisdiction over the appeal. Under 28 U.S.C. § 158(d), circuit courts have jurisdiction over bankruptcy cases in which district courts have entered “final decisions, judgments, orders and decrees.” We recognize that the courts “have consistently considered finality in a more pragmatic and less technical way in bankruptcy cases than in other cases.” In re Amatex Corp., 755 F.2d 1034, 1039 (3d Cir.1985). Because of the unique nature of bankrupt cy cases, we have often permitted review of orders that are considered interlocutory in other contexts. See, e.g., In re Pacor, Inc., 743 F.2d 984 (3d Cir.1984); In re Marin Motor Oil, Inc., 689 F.2d 445 (3d Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983). By allowing parties to appeal discrete issues within a single bankruptcy proceeding, we have sought to avoid the waste of resources that would result from insisting upon the completion of the proceedings pri- or" }, { "docid": "18696628", "title": "", "text": "stay does not apply to entity that holds no prepetition claim). See also Taylor v. First Federal Sav. & Loan Assoc., 843 F.2d 153, 154 (3d Cir.1988). The Perez decision itself demonstrates that § 525(a) was intended to reach governmental non-creditors since the defendant, the Arizona Department of Motor Vehicles, possessed no claim against the estate. The Department’s denial of a driver's license to the discharged debtor, when viewed by current bankruptcy code terminology, would not violate the bankruptcy stay under § 362(a). Moreover, such action, if taken after discharge, arguably would also not violate the discharge injunction under § 524(a). See, e.g., In re White Motor Credit Corp., 37 B.R. 631 (N.D.Ohio 1984), aff'd, 761 F.2d 270 (6th Cir.1985). See also In re Sullivan, 90 B.R. 307 (M.D.Tenn. 1988). Without a provision such as § 525(a), such conduct — absent a successful constitutional challenge under the Supremacy Clause — might not be prohibited. That the breadth of § 525(a) may overlap with the broad automatic stay provisions does not alter its primary purpose. Given this congressional purpose, whether defendants’ delay or initial refusal concerning the instant educational grant falls within the scope of § 525(a) need not be decided in this proceeding. Assuming arguendo that such conduct did indeed violate section 525(a), but cf. In re Watts, 876 F.2d at 1093 n. 2, 1 conclude that a violation of that subsection could not yield a claim for damages payable to the debtor on the facts presented in this dispute. The only reported decision to address the issue concluded that no damages for the violation of § 525(a) would lie, and only declaratory and injunctive relief were appropriate. Matter of Marine Electric Railway Products Division, Inc., 17 B.R. 845, 854 (Bankr.E.D.N.Y.1982). But see 1 Norton Bankruptcy Law and Practice, § 27.06 (1988). I find that the court’s conclusion in Marine Electric is overbroad; rather, the potential damage liability of a governmental entity that violates the provisions of § 525(a) — a statutory provision addressed solely to governmental entities — is co-extensive with such entity’s waiver of sovereign immunity. Section 525(a)" }, { "docid": "16776532", "title": "", "text": "525 bars only governmental agencies and employers from discriminating against a debtor on account of a previous bankruptcy filing. 11 U.S.C. § 525. Congress rejected a general anti-discrimination policy. See, In re Goldrich, 771 F.2d 28, 31-32 (2nd Cir.1985) (reviewing history). Brown has conceded, as both lower courts found, that § 525 does not bar PSECU from enforcing its policy. Yet, any refusal of future services by a present creditor has some coercive impact. If we hold that the impact itself is sufficient to violate the bankruptcy injunctions of § 362 and § 524, then a creditor — whether or not a governmental unit or employer — may be-prevented from denying future services because of a prior discharged debt. The debtor could do indirectly through § 362 and § 524 what she cannot accomplish directly through the anti-discrimination provision. We cannot find that Congress intended this result. Brown argues that, in this particular case, the withdrawal of the credit union’s services is, without more, coercive. Even assuming that a mere refusal to deal can violate § 362 and § 524 of the bankruptcy code, Brown cannot succeed on these facts. The conveniences which the credit union supplies the debtor — direct deposit and automatic payment of life insurance premiums — do not rise to such a level that the threat of their withdrawal is necessarily coercive. See, Morgan Guaranty Trust Co. v. American Savings and Loan Ass’n., 804 F.2d 1487, 1491 n. 4 (9th Cir. 1986) (comparing cases), cert. denied, — U.S. —, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987). Further, Brown never alleged these services were available only through the credit union. Therefore, PSECU is not barred from having and enforcing a policy of excluding members who have failed to repay a loan to the credit union, regardless of whether the debt has been discharged in bankruptcy. Having concluded that PSECU’s bylaw provision is valid, we do not see how merely sending the letter offends the bankruptcy laws. To hold otherwise allows the credit union to deny services to a debtor but forbids it to say why. The result" }, { "docid": "16776531", "title": "", "text": "court approval. The question before this court is whether the subject matter of that letter, without more, violates the injunctive provisions of the bankruptcy code. B. We hold that PSECU did not violate § 362 or § 524 of the bankruptcy code merely by informing Brown of its policy. Nothing in the bankruptcy code requires this creditor to do business with this debt- or. To require dealings would impermissi-bly extend the scope of the code’s anti-discrimination provisions, and Brown fails to make out a case warranting an extension on the particular facts of this case. Because PSECU may refuse Brown services, we agree with the bankruptcy court that PSECU may inform Brown of its policy. In refusing to impose sanctions on PSECU, this court agrees with other courts of appeals which have considered the issue, and our decision does not infringe on the policies of the bankruptcy code. The limited scope of the anti-discrimination provisions of the code demonstrates that PSECU may lawfully refuse to deal with Brown on account of her discharged debt. Section 525 bars only governmental agencies and employers from discriminating against a debtor on account of a previous bankruptcy filing. 11 U.S.C. § 525. Congress rejected a general anti-discrimination policy. See, In re Goldrich, 771 F.2d 28, 31-32 (2nd Cir.1985) (reviewing history). Brown has conceded, as both lower courts found, that § 525 does not bar PSECU from enforcing its policy. Yet, any refusal of future services by a present creditor has some coercive impact. If we hold that the impact itself is sufficient to violate the bankruptcy injunctions of § 362 and § 524, then a creditor — whether or not a governmental unit or employer — may be-prevented from denying future services because of a prior discharged debt. The debtor could do indirectly through § 362 and § 524 what she cannot accomplish directly through the anti-discrimination provision. We cannot find that Congress intended this result. Brown argues that, in this particular case, the withdrawal of the credit union’s services is, without more, coercive. Even assuming that a mere refusal to deal can violate" }, { "docid": "11556963", "title": "", "text": "to show cause under Bankruptcy Rule 9020 would be unnecessary as the Debtors invoked section 362. Moreover, the alleged violation of the automatic stay is the central focus of the petition for a rule to show cause. The Debtors cite numerous authorities for the proposition that the IRS can be held in civil contempt for violations of the discharge injunction provided for under 11 U.S.C. § 524. As the Chapter 13 plan has not been consummated, the Debtors are not entitled to a discharge under section 1328 at this time. Thus, the cited cases decided under section 524 are inapposite for purposes of section 362. B. 11 U.S.C. § 362 Under section 362(a)(1), the filing of a petition in bankruptcy operates as a stay of— the commencement or continuation, including the issuance or employment of process, or a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. 11 U.S.C. § 362(a)(1). Section 362(a)(6) prevents a creditor from taking “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;” 11 U.S.C. § 362(a)(6). Prohibited conduct includes a telephone call to collect a pre-petition debt. In re Heliums, 772 F.2d 379, 381 (7th Cir.1985). In enacting section 362, Congress sought to prevent creditors from attempting to collect a pre-petition debt in any way. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 342 (1977), U.S.Code Cong. & Admin. News 1978, p. 5963. Congress expressed special concern for the inexperienced and frightened debtor who may give in to demands to pay a pre-petition debt even though he is in bankruptcy. S.Rep. No. 95-989, 95th Cong., 2nd Sess. 50-51 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. The intent behind section 362 is to protect the debtor, giving him relief from creditors. Consequently, the' debtor is given a “more effective fresh start.” In re Smurzynski, 72 B.R." }, { "docid": "12808229", "title": "", "text": "U.S.C. § 362(a)(3) and (a)(6). She argued that the termination was an attempt to force her out of bankruptcy so the Bank could collect the debts owed it by Wilson. She also asserted a claim under 11 U.S.C. § 525. . The defendant moved to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. The bankruptcy judge granted the motion and dismissed the case without prejudice. On appeal, the district court affirmed in part and reversed in part, holding that Wilson did have a cause of action under 11 U.S.C. § 362(a), but did not have a cause of action under 11 U.S.C. § 525. The case was remanded to the bankruptcy court. Wilson then withdrew her claim with respect to 11 U.S.C. § 362(a). The issue we must decide is whether Wilson has stated a cause of action under 11 U.S.C. § 525. II. Since this is an appeal from a dismissal for failure to state a claim under Fed.R. Civ.P. 12(b)(6) and Rule 712 of the Bankruptcy Rules, we treat all of Wilson’s allegations in the complaint as true. United Independent Flight Officers v. United Air Lines, 756 F.2d 1262, 1264 (7th Cir.1985). We also view all allegations in the light most favorable to Wilson. Haroco, Inc. v. American National Bank and Trust Co., 747 F.2d 384, 385 (7th Cir.1984), aff'd, — U.S. -, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). Section 525(a) provides, in relevant part, as follows: A governmental unit may not ... terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title ... solely because such bankrupt or debtor is or has been a debt- or under this title, or a bankrupt or debt- or under the Bankruptcy Act, ... or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. The legislative history accompanying § 525 indicates that, as enacted, the section codifies the result in Perez v. Campbell, 402" }, { "docid": "12808233", "title": "", "text": "suggested that § 525 should be construed to apply to private entities. In re Olson, 38 B.R. 515, 519 (Bkrtcy.N.D.Iowa 1984) (basing decision on §§ 362(a) and 524(a)); Matter of Green, 29 B.R. 682, 686 (Bkrtcy.S.D.Ohio 1983) (private entity acting as “vicarious agent” of state; § 525 violated); In re Parkman, 27 B.R. 460, 462 (Bkrtcy.N.D.Ill.1983) (where actions of private institution are really tools to collect a discharged debt, debtor is denied the fresh start contemplated by Congress; §§ 362(a) and 525); Bell v. Citizens Fidelity Bank & Trust Co., 636 F.2d 1119 (6th Cir.1980) (summary judgment improper where issues of material fact existed as to whether employer discharged the plaintiff employee for filing a petition in bankruptcy and whether the policy of discharging employees who have filed petitions in bankruptcy had a discriminatory impact on blacks; citing no statutory authority.) But see id. at 1120 (Weick, J., dissenting). Nevertheless, the majority of courts have rejected applying § 525 to private entities prior to 1984. See In re Amidon, 22 B.R. 457 (Bkrtcy.D.Mass.1982) (§ 525 does not apply to employer management company); In re Barbee, 14 B.R. 733, 736 (Bkrtcy.E.D.Va.1981) (§ 525 does not apply to employer bank); In re Coachlight Dinner Theatre of Nanuet, Inc., 8 B.R. 657, 658 (Bkrtcy.S.D.N.Y.1981) (§ 525 inapplicable to a private radio station); In re Northern Energy Products, 7 B.R. 473, 474 (Bkrtcy.C.D.Minn.1980) (Better Business Bureau is not a governmental unit under § 525); In re Douglas, 18 B.R. 813, 815 (Bkrtcy.W.D.Tenn.1982) (§ 525 inapplicable to an insurance company). See also Matter of Jackson, 424 F.2d 1220, 1222 (7th Cir.), cert. denied 400 U.S. 911, 91 S.Ct. 145, 27 L.Ed.2d 150 (1970) (pre-dating Bankruptcy Reform Act but finding no authority to issue an injunction continuing a debtor’s employment against his private employer’s will); McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 929-30 (5th Cir. 1977) (en banc) (pre-dating the Bankruptcy Reform Act but finding no law prohibiting a private employer from firing an employee because he had filed a petition in bankruptcy and refusing to extend Perez); Marshall v. District of Columbia" }, { "docid": "18750546", "title": "", "text": "review of authorities indicates that section 525 has accordingly been applied to disputes involving licenses, permits, etc., not to rate determinations. Duffey v. Dollison, 734 F.2d 265 (6th Cir.1984); In re Patterson, 10 B.R. 860 (Bankr.E.D.Pa.1981), and In re Young, 10 B.R. 17 (Bankr.S.D.Cal.1980) (denial of driver’s license); In re Green, 29 B.R. 682 (Bankr.S.D.Ohio 1983) (real estate license); In re Alessi, 12 B.R. 96 (Bankr.N.D.Ill.1981) (horseracing license); and In re Anderson, 15 B.R. 399, 5 C.B.C.2d 701 (Bankr.S.D.Miss.1981) and In re Maley, 9 B.R. 832, 4 C.B.C.2d 292 (Bankr.W.D.N.Y.1981) (liquor license). But see, In re Geffken, 43 B.R. 697, 701-702 (Bankr.N.D.Ohio 1984). The Sixth Circuit in Duffey noted that the legislative history to section 525 indicates that the section was intended to assure the debtor a “fresh start” by preventing governmental discrimination based “solely” on the bankruptcy of the debtor and to strengthen the anti-reaffirmation policy of section 524(b). Duffey, 734 F.2d at 271. “ ‘[T]he primary purpose of section 525 of the Bankruptcy Code is to prevent the government either from denying privileges to individuals solely as a reaction to their filing bankruptcy or from conditioning the grant of privileges on the bankrupt’s reaffirmation of certain debts.’ ” Id. (quoting Duffey v. Dollison, No. 02-81-1154, slip op. at 8 (S.D.Ohio Aug. 13, 1982)). Legislative history indicates that section 525 is not a prohibition of all factors, such as future financial responsibility or condition, and net capital rules, but it only prohibits the discriminatory examination of certain factors, e.g. the fact of bankruptcy or the discharge of a debt in bankruptcy. 734 F.2d at 271. The Bureau has not levied a higher experience rate on the debtors “solely” on the bankruptcy of the debtor. In fact, the higher rate levied has no relation to the filing of bankruptcy by the debtors, or pre-petition debts, dischargeable or not. The higher rate is related to the debtors’ pre-petition experience of safety, or lack of it, in the workplace. The rate determined by the Bureau would be the same whether the employers were “debtors” under Title 11 of the Code, or not." }, { "docid": "23444296", "title": "", "text": "to facilitate reaffirmation agreements. See In re Pendlebury, 94 B.R. 120, 124, 18 B.C.D. 999 (Bankr.E.D.Tenn.1988). Yet by imposing a kind of gag order on creditors, a reaffirmation agreement will be reached only if, a) the debtor is aware of the right to reaffirm, b) the debtor initiates reaffirmation agreements with the creditor, and c) the parties are able to reach an agreement despite the creditor's inability to negotiate in its own behalf. Thus a strict application of § 362(a)(6) would severely hamper a process that Congress, through the 1984 amendments, tried to simplify. The court in Brown v. Pennsylvania State Employees Credit Union, 851 F.2d 81 (3d Cir.1988), identified yet another problem raised by a literal interpretation of § 362(a)(6). As discussed, § 525 implicitly allows nongovernmental entities, other than the employer (or, possibly, a prospective employer) of the debtor, to discriminate against the debtor because she filed bankruptcy. But since, for example, “any refusal of future services by a present creditor has some coercive impact” on a debtor’s repayment decision, 851 F.2d at 85, reading § 362(a)(6) as barring all such coercive actions would prohibit conduct which, by negative inference, is generally permitted under § 525. Id. (“The debtor could do indirectly through § 362 and § 524 [i.e., require a creditor to continue services to her] what she cannot accomplish directly through the anti-discrimination provision. We cannot find that Congress intended this result.”). Finally, an interpretation of § 362(a)(6) which prevents creditors from negotiating reaffirmation agreements would significantly impair the bankruptcy process. A deeply rooted principle of American jurisprudence is to favor settlement and, conversely, to discourage litigation. See American Security Vanlines v. Gallagher, 782 F.2d 1056, 1060 (D.C.Cir.1986); Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir.1979). A strict interpretation of subsection (a)(6) would have the opposite effect: Creditors would be chilled from engaging in (let alone initiating) reaffirmation discussions, preferring instead to proceed immediately with “plan B” — whether that be a § 523 action, repossession of collat eral, or some other alternative. And once litigation is commenced, the creditor would be wary of-attempts to" }, { "docid": "16776537", "title": "", "text": "this claim is no longer in question. . The district court held that PSECU violated both provisions. The record is clear that Brown filed her petition, thereby triggering the prohibitions of § 362, before PSECU sent its letter. However, it does not appear that Brown has been granted the discharge in bankruptcy which triggers the prohibitions of § 524. Because Brown seeks a declaratory judgment that the credit union's policy violates § 524, and because PSECU has stated that it will continue to enforce its policy, we have jurisdiction to determine whether the declaratory judgment may issue. . In this respect, the present action differs from In re Olson, 38 B.R. 515 (Bkrtcy.N.D.Iowa 1984), relied on heavily by the debtor, where the bankruptcy court found that the creditor denied services with the intent to coerce repayment. To the extent that opinion differs with our holding, we do not follow it. . At all times relevant to this case, a debtor could reaffirm a dischargeable debt only if agreed prior to discharge and not rescinded by the debtor for thirty days thereafter, and if presented to the bankruptcy court. 11 U.S.C. § 524(c) & (d). . See also, In re Exquisito Services, Inc., 823 F.2d 151, 153 (5th Cir.1987) (anti-discrimination provision limited to cases analogous to those enumerated); Wilson v. Harris Trust and Savings Bank, 777 F.2d 1246, 1247-48 (7th Cir.1985) (private parties not protected) (pre-1984 law). Even a government creditor may refuse to extend credit because it suffered a loss with a prior discharged debt. See, Goldrich, 771 F.2d at 28. . Also, Congress allows bankrupt status to be reported for ten years, see 15 U.S.C. § 1681c(a)(l), further indicating that a creditor may deny a loan based on that status. Lastly, holding illegal PSECU’s action also creates an untenable distinction between past and future creditors. A potential creditor who has never extended a loan to a bankrupt is free to deny credit — having no prior loan of which to coerce payment — while the creditor who has formerly extended loans is not." }, { "docid": "18743799", "title": "", "text": "and rejected same as being overbroad. Other courts are in accord. In In re Northern Energy Products, 7 B.R. 473 (Bkrtcy.Minn.1980), the debtor sought a temporary restraining order under §§ 362 and 525 to enjoin a local Better Business Bureau from mentioning in its report that the debtor had filed a petition in bankruptcy under Chapter 11 for the reason that the report was causing irreparable harm to its business. The court, after denying the § 362 charge by the debtor, stated: “Further, defendant is a private corporation, and is not a governmental unit un der § 525 of the Bankruptcy Code which protects a debtor against discriminatory treatment by a governmental unit, and said section is not applicable to Better Business Bureau of Minnesota.” In re Northern Energy Products, at 474. See also, In re Coachlight Dinner Theatre of Nanuet, Inc., 8 B.R. 657 (Bkrtcy. S.D.N.Y.1981) (“The radio station is a private entity and cannot be regarded as a governmental unit under Code § 525, which affords protection against discriminatory treatment by a governmental unit.”); Contra, In re Terry, 7 B.R. 880 (Bkrtcy. E.D.Va.1980) (“The courts of bankruptcy generally take a dim view of an employer firing an employee simply because he or she has filed a bankruptcy petition and the jurisdiction to enjoin this is widely accepted.”); In re Heath, 3 B.R. 351, 353 (Bkrtcy.N.D.Ill.1980) at f.n. 1 (“As originally proposed by the Bankruptcy Commission ... the section would have been extended to action by private parties. As enacted, the statute is certainly no bar to court extension of the no discrimination rule to private parties or groups.”); Bell v. Citizens Fidelity Bank & Trust Company, 636 F.2d 1119 (6th Cir. 1980) (The court held that summary judgment granted in the District Court was improperly granted where issues of material fact existed as to whether the employer discharged the plaintiff employee for filing a petition in bankruptcy and whether the policy of discharging employees who have filed petitions in bankruptcy have a discriminatory impact on blacks. But see: Bell, (Weick, J., dissenting)). For this Court to enjoin a" }, { "docid": "18696627", "title": "", "text": "of taking discriminatory post-petition action designed to coerce or obtain repayment of its claim, such conduct is addressed by the broad provisions of § 362(a). See generally In re Colon. Section 525(a) instead was intended to reach non-creditor governmental (or quasi-governmental) entities that, in their quest to protect the public interest, wrongfully discriminate against debtors and frustrate the “fresh start” policy of the bankruptcy code by denying property interests not obtainable through the private sector. Cf. In re Exquisito Services, Inc., 823 F.2d 151 (5th Cir.1987) (while § 525(a) does not prohibit all governmental discrimination, it does bar a governmental refusal to renew food services contract where that contract is awarded under a program designed to provide governmental assistance to small and minority owned businesses). Unless the governmental entity was acting as an agent for a creditor, see In re Colon, such conduct would not run afoul of § 362. See Matter of M. Frenville Co., 744 F.2d 332, 335 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985) (automatic stay does not apply to entity that holds no prepetition claim). See also Taylor v. First Federal Sav. & Loan Assoc., 843 F.2d 153, 154 (3d Cir.1988). The Perez decision itself demonstrates that § 525(a) was intended to reach governmental non-creditors since the defendant, the Arizona Department of Motor Vehicles, possessed no claim against the estate. The Department’s denial of a driver's license to the discharged debtor, when viewed by current bankruptcy code terminology, would not violate the bankruptcy stay under § 362(a). Moreover, such action, if taken after discharge, arguably would also not violate the discharge injunction under § 524(a). See, e.g., In re White Motor Credit Corp., 37 B.R. 631 (N.D.Ohio 1984), aff'd, 761 F.2d 270 (6th Cir.1985). See also In re Sullivan, 90 B.R. 307 (M.D.Tenn. 1988). Without a provision such as § 525(a), such conduct — absent a successful constitutional challenge under the Supremacy Clause — might not be prohibited. That the breadth of § 525(a) may overlap with the broad automatic stay provisions does not alter its primary purpose. Given" } ]

[ { "docid": "10542289", "title": "", "text": "whole treat a case fairly and accurately, we Ml not disturb them on appeal. Smith, 995 F.2d at 669-70. Moreover, “small differences in the wording of instructions will rarely have such impact on the jury as to warrant reversal.” United States v. Josefik, 753 F.2d 585, 589 (7th Cir.), cert. denied, 471 U.S. 1055, 105 S.Ct. 2117, 85 L.Ed.2d 481 (1985). Charles argues that Judge Aspen’s instruction provided the jury with a vague and incomplete definition of the statutory violation. We disagree. The instructions do not refer to any crime in general, they refer specifically to trafficking in cocaine, which is included in the definition of “specified unlawful activity” under 18 U.S.C. § 1956(b)(7). When read as a whole and in the context of this entire case, the instructions to the jury sufficiently specified the crimes underlying Charles’ violation of 18 U.S.C. § 1956. Charles also argues that the district court erred by failing to give a “multiple conspiracy” instruction. See United States v. Kendall, 665 F.2d 126, 136 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982). If the possibility of a multiple conspiracy exists, then the district judge must so instruct the jury. Id. However, as we have previously noted, it is sometimes difficult to discern whether or not such a possibility exists. “If the persons join together to further one common design or purpose, a single conspiracy exists. Multiple conspiracies, by contrast, exist when there are separate agreements to effectuate distinct purposes.” Id. In this case the district court used our Circuit’s pattern instruction 5.11 on conspiracy, 1 Federal Criminal Jury Instruo-TIONS FOR THE SEVENTH CIRCUIT 5.11 (1980), and refused to give an additional instruction proposed by the defendants. A defendant is entitled to an instruction on his defense only if “the defendant proposes a correct statement of the law; the defendant’s theory is supported by the evidence; the defendant’s theory of defense is not part of the charge; and the failure to include an instruction on the defendant’s theory of defense in the jury charge would deny the defendant a fair" } ]

[ { "docid": "23511465", "title": "", "text": "in the United States but did not know that they were imported — is not reflected in the pattern instruction on importation. See United States v. Douglas, 818 F.2d 1317, 1322 (7th Cir.1987) (holding that a model jury instruction can be inadequate in circumstances where the “case ... involves a theory of defense that is not reflected in that instruction”). We have previously held that “‘[t]he defendant in a criminal case is entitled to have the jury consider any theory of the defense which is supported by law and which has some foundation in the evidence, however tenuous.’ ” United States v. Boucher, 796 F.2d 972, 975 (7th Cir.1986) (quoting United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969)). However, a criminal defendant’s entitlement to a theory-of-defense instruction is limited to circumstances where: (1) “the defendant proposes a correct statement of the law;” (2) “the defendant’s theory is supported by the evidence;” (3) “the defendant’s theory of defense is not part of the charge;” and (4) “the failure to include an instruction on the defendant’s theory of defense in the jury charge would deny the defendant a fair trial.” Douglas, 818 F.2d at 1320-21. The defendant’s burden of demonstrating that he was entitled to an instruction on his theory of defense is further complicated by the applicable standard of review. In circumstances where the defendant makes a proper objection, we review a district court’s decision regarding the language of a proposed jury instruction for an abuse of discretion, see Spiller v. Brady, 169 F.3d 1064, 1066 (7th Cir.1999), and its decision not to instruct on a theory of defense de novo, see United States v. Meyer, 157 F.3d 1067, 1074 (7th Cir.1998). At trial, the defendant did contest the government’s proposed instruction and requested that the district court instruct the jury that, in order to convict on the conspiracy and importation charges, it had to determine that the defendant knew the imported nature of the heroin. However, “[mjerely submitting instructions is not sufficient” to preserve an objection. Douglas, 818 F.2d at 1320. Rather, “a defendant must object, on the" }, { "docid": "18616796", "title": "", "text": "evidence. Instead, the court chose two instructions (Instructions 19 and 20) which closely followed Seventh Circuit Pattern Instruction 5.11 on conspiracy and developed a third instruction (Instruction 30) with the assistance of both the government and Elliott’s attorney to convey Elliott’s theory of defense to the jury. At no time during the instruction conference did Elliott’s attorney object to the district court’s chosen instructions. On appeal, Elliott argues that his conviction must be reversed because the district court denied him the opportunity to present his theory of defense to the jury. As Elliott implicitly concedes, he did not properly preserve this issue for appeal. To preserve an objection to the district court’s refusal to give a proposed instruction, the defendant must object on the record to the judge’s refusal to tender his requested instructions and must clearly state his reason for the objection. Fed.R.Crim.P. 30; United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987) (citing United States v. Green, 779 F.2d 1313, 1320 n. 6 (7th Cir.1985)). Merely submitting the instruction is insufficient. Because Elliott failed to preserve his objection, we review his claim on appeal under a “plain error” standard. United States v. Starnes, 14 F.3d 1207, 1213 (7th Cir.1994); Douglas, 818 F.2d at 1320. Plain error is an error so egregious that a miscarriage of justice results. Starnes, 14 F.3d at 1213 (citations omitted). The district court’s instructions to the jury were not “plainly erroneous.” While Elliott was entitled to jury instructions encompassing his defense, he was not entitled to have his particular instructions read to the jury. See Douglas, 818 F.2d at 1320. In this ease, the court reviewed Elliott’s submitted instructions and found them confusing, unhelpful and somewhat inappropriate. The district court also noted that “the essence of whatever is good about them is covered in the instructions that I am giving.” We agree. More so than Elliott’s proposed instructions, Instructions 19 and 20 accurately stated the law of conspiracy in the Seventh Circuit, conveying to the jury both the essential elements the government must prove on a conspiracy charge and the circumstances under which" }, { "docid": "9645542", "title": "", "text": "of discretion, approving on appeal instructions that “fairly and accurately” summarize the law and have support in the record. United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir.2003). However, we determine de novo whether an instruction fairly and accurately summarizes the law or is legally erroneous. United States v. Smith, 308 F.3d 726, 740 (7th Cir.2002); Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir.1999). Jefferson presents the principal subject in dispute, the meaning of “dispose of,” in three ways. First, he argues that the jury instruction as given constituted an improper constructive amendment of the indictment. Second, he argues that the government did not present sufficient evidence to support the jury’s verdict. Finally, he alleges that the jury instruction itself was not a proper statement of the law. The constructive amendment argument does not get Jefferson very far. “[A] constructive amendment occurs where proof at trial goes beyond the parameters of the indictment in that it establishes offenses different from or in addition to those charged by the grand jury. Such error ... which in a jury trial can also be generated or exacerbated by faulty instructions, violates the Fifth Amendment since the Grand Jury Clause limits the available bases for conviction to those contained in the indictment.” United States v. Pigee, 197 F.3d 879, 886 (7th Cir.1999) (internal quotation marks omitted). As the government agrees, a constructive amendment can be made either through the evidence or through the jury instructions. Jefferson argues that the definition of “dispose of’ in the district court’s jury instruction was so broad that he was effectively convicted of aiding and abetting his brother’s possession in violation of 18 U.S.C. § 922(g), rather than of delivering a firearm to a felon in violation of § 922(d), the offense for which he was indicted. Ultimately, this argument only begs the question of the proper interpretation of § 922(d). If the district court’s instruction was legally correct (i.e., if § 922(d) does cover Jefferson’s actions), there is no reason to believe that Jefferson was improperly convicted of aiding and abetting his brother’s violation" }, { "docid": "16757860", "title": "", "text": "a district court’s decisions regarding jury instructions for an abuse of discretion. American Nat’l Bank & Trust Co. of Chicago v. Regional Transp. Auth., 125 F.3d 420, 434 (7th Cir.1997) (citation omitted). We find no abuse of discretion here. A defendant is entitled to a jury instruction on his theory of defense only if: 1) the instruction represents an accurate statement of the law; 2) the instruction reflects a theory that is supported by the evidence; 3) the instruction reflects a theory that is not already part of the charge; and 4) failure to include the instruction would deny the defendant a fair trial. United States v. Edwards, 36 F.3d 639, 645 (7th Cir.1994) (citing United States v. Boykins, 9 F.3d 1278, 1285 (7th Cir.1993)). For a conviction under § 922(g)(8), one of the elements that the government must prove beyond a reasonable doubt is that the protective order was issued against the defendant “after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.” § 922(g)(8)(A). These very elements were part of the charge to the jury in an instruction detailing what the government had to prove in order for it to find Wilson guilty. Wilson’s proposed instructions essentially repeated these elements; as such, they did not meet criteria (3) above and the district court correctly refused to give them. Wilson also argues that his instructions should have been given because the terms “hearing” and “opportunity to participate” were not otherwise defined in the instructions. We, just as the district court, disagree ’that these terms needed any definitions beyond their common-sense meanings. The instructions given to the jury tracked the language of § 922(g)(8), including as elements of the crime: “4. The Order of Protection was issued after a hearing of which defendant received actual notice; 5. Defendant had an opportunity to participate at said hearing. ...” See Loose Pleadings, Vol. I. It is axiomatic that when construing a statute, we must first look to the language used by Congress, giving the words their ordinary meaning. “[Ajbsent a clearly expressed" }, { "docid": "13797465", "title": "", "text": "DNA) to corroborate Hernandez’s identification. See Hall, 165 F.3d at 1107-08 (“[T]he existence of corroborating evidence undercuts the need, except in the most compelling cases, for expert testimony on eyewitness identifications.”). Third, the district court twice cautioned the jurors, through instructions, about assessing witnesses and the risks associated with eyewitness identifications. See Crotteau, 218 F.3d at 832-33. These developments— especially the jury instructions, which effectively gave the jury the same key points on eyewitness identifications that the expert would have presented to them- — provide further support for the district court’s conclusion that the proposed expert testimony would not assist the jury. The district court did not abuse its discretion. C. Defendant’s Testimony Carter next protests the district court’s decision to limit his testimony at trial. Carter testified in his own defense by reading, over the government’s objection, self-styled “affidavits” into the record. At first, Carter directed this narrative testimony toward undermining his confession to the September 4 robbery, asserting that his extreme intoxication at the time resulted in a false confession. When he reached his fourth “affidavit,” his narrative turned to his religious and philosophical beliefs. The government raised a relevancy objection, which the district court sustained. The district court then directed Carter to stick to matters relevant to the trial. Carter ignored the order and returned to his commentary. Once seven such warnings were disregarded, the district court, over Carter’s protestations, imposed a time limit on the remainder of Carter’s testimony pursuant to Federal Rule of Evidence 611(a). The length of the time limit is not discernable from the trial transcript, but Carter’s entire direct testimony lasted approximately ninety minutes. Supposedly, Carter was eventually going to say something about the September 1 robbery. Carter therefore complains that the district court violated his constitutional right to testify in his own defense. See United States v. Manjarrez, 258 F.3d 618, 623 (7th Cir.2001). When an evidentiary ruling “directly implicate[s]” a defendant’s constitutional right, United States v. Hernandez, 84 F.3d 931, 933 (7th Cir.1996), we review de novo the question of whether the “evidentiary ruling ... had the effect of infringing”" }, { "docid": "13543205", "title": "", "text": "conspiracy by the key players in this case: Tringali, Hernandez and Trujillo. The evidence also satisfied the third factor, since Hernandez was actually convicted of the proffered similar act. And finally, given the limiting jury instruction the district court did not abuse its discretion in finding that the probative value of the evidence in proving knowledge and intent was not outweighed by the danger of unfair prejudice. Lampkins, 47 F.3d at 180 (court did not abuse discretion in concluding that probative value of the evidence was not outweighed by prejudice where court gave a careful limiting instruction). Therefore the district court properly admitted evidence of Hernandez’s 1984 cocaine conspiracy conviction, . B. Jury Instruction Hernandez next asserts that he was denied a fair trial because the district court refused to give the jury a “mere presence” instruction. On appeal Hernandez claims that he was entitled to the “mere presence” instruction because he was “merely present” at the Imperial Beach home which Tringali called while he was in Illinois delivering the drugs to Alex. Hernandez’s attorney did submit a “mere presence” instruction and briefly discussed the evidence he claimed would merit giving it to the jury. But merely submitting an instruction is not enough. United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987). “A defendant must object, on the record, to the judge’s refusal to tender the defendant’s instructions, and must clearly state the reasons for his or her objections.” Id. He did not object to the judge’s refusal (and obviously gave no reasons). We therefore review the refusal for plain error. “Plain error must be of such a great magnitude that it probably changed the outcome of the trial.” Id. [A] defendant is entitled to an instruction on his or her theory of defense if: (1) the defendant proposed a correct statement of the law; (2) the defendant’s theory is supported by the evidence; (3) the defendant’s theory of defense is not part of the charge; and (4) the failure to include an instruction on the defendant’s theory of defense in the jury charge would deny the defendant a" }, { "docid": "11592800", "title": "", "text": "Commuter R.R., 191 F.3d 283, 295 (2d Cir.1999) (“An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercised reasonable care in preventing and correcting sexually harassing conduct.”); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 967 (8th Cir.1999) (“An employer is not liable if it takes prompt remedial action which is reasonably calculated to end the harassment once the employer knew or should have know about the harassment.”). In the present case, C.P. Hall’s preventive measures mentioned above were reasonably calculated to foreclose subsequent harassment. It was, therefore, entitled to a jury instruction on the Faragher/Ellerth affirmative defense, regardless of whether the remedial measures ultimately proved unsuccessful. 2. Whether the Faragher/Ellerth jury instruction was a correct statement of the law. Savino next argues that the jury instruction concerning the Faragher/Ellerth affirmative defense did not accurately state the law, and that her instruction on the defense should have been given. We review jury instructions de novo to determine whether they provide fair and accurate summaries of the law. United States v. Tingle, 183 F.3d 719, 729 (7th Cir.1999). Recognizing that the formulation of jury instructions is not an exact science, the district court is given substantial discretion with respect to the precise wording of jury instructions, so long as the instruction completely and correctly states the law. Id. Notably, the district court is under no obligation to adopt the wording of any of the litigants’ proposed instructions. Russell v. Natl R.R. Passenger Corp., 189 F.3d 590, 594 (7th Cir.1999). Reversal is warranted on this point only if an instruction misstates the law and this error misguides the jury so much that one party is prejudiced, Wichmann v. Board of Trustees of S. Ill. Univ., 180 F.3d 791, 804 (7th Cir.1999). The instruction at issue here states: If you find that the plaintiff, Karen Savino, has established her claim of sexual harassment, then you may consider whether defendant, The C.P. Hall Company, has established an affirmative defense to plaintiffs established case of sexual harassment. The burden of proof is on the employer, The C.P." }, { "docid": "1638669", "title": "", "text": "his “bad neighborhood” rose to the level sufficient to warrant the granting of a mistrial. There was no Fifth Amendment violation when the prosecution referenced the “undisputed” evidence because there were witnesses besides Aldaco who could have contested the evidence that Aldaco possessed the gun on the roof. Additionally, there was nothing improper in the remarks that the defense has subpoena power or that Aldaco made the neighborhood “bad.” Therefore, Aldaco was not deprived of his right to a fair trial. D. Jury Instructions Regarding Possession The trial court instructed the jury on both sole and joint possession of a firearm. The instructions, given over defense counsel’s objections, were as follows: A person who has direct physical control over a thing, at a given time, is then in actual possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual possession of a thing, possession is sole. If two or more persons share actual possession of a thing, possession is joint. You may find that the element of possession, as just defined, is present if you find that the defendant had actual possession, either alone or jointly with others. Aldaco argues that the district judge erred in giving this instruction because it was not germane to the facts of this case. We review the trial judge’s rulings on jury instructions for an abuse of discretion. See United States v. Neville, 82 F.3d 750, 759 (7th Cir.1996). If the jury instructions fairly and accurately summarize the law and have support in the record they will not be disturbed on appeal. See United States v. Wimberly, 79 F.3d 673, 676 (7th Cir.1996). Finally, even if the instruction was erroneous, Aldaco must show actual prejudice to warrant reversal. See United States v. Smith, 131 F.3d 685, 688 (7th Cir.1997). We hold that the district court did not abuse its discretion in giving the instruction on sole and joint possession because the instruction referred to provides a fair and accurate summary of the law as applied to the facts in the case; the fact that" }, { "docid": "8514818", "title": "", "text": "citizen spouses immunity for testifying against the foreign spouses, who the government deemed to be more culpable, falls within the government’s broad prosecutorial discretion. See, e.g., United States v. Blake, 415 F.3d 625, 627 (7th Cir.2005). C. Jury Instructions Defendant argues that the district court should have accepted his proposed jury instructions on the marriage fraud charge. Without those instructions, Defendant contends, the jury was not informed of all the elements of the marriage fraud offense and he was thereby prejudiced. Additionally, Defendant argues that the district court should have provided a definition of “corruptly persuades” in relation to the witness tampering count. “We review jury instructions de novo to determine whether they provide fair and accurate summaries of the law.” Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir.1999) (citing United States v. Tingle, 183 F.3d 719, 729 (7th Cir.1999)). However, recognizing that the formulation of jury instructions is not an exact science, the district court is given substantial discretion with respect to the precise wording of jury instructions, so long as the instruction completely and correctly states the law. Notably, the district court is under no obligation to adopt the wording of any of the litigants’ proposed instructions. Reversal is warranted on this point only if an instruction misstates the law and this error misguides the jury so much that one party is prejudiced. Savino, 199 F.3d at 934 (citing Tingle, 183 F.3d at 729; Russell v. Nat’l R.R. Passenger Corp., 189 F.3d 590, 594 (7th Cir.1999); Wichmann v. Bd. of Trustees of S. Ill. Urdu, 180 F.3d 791, 804 (7th Cir.1999)). Defendant must satisfy a four-part test to demonstrate that he was entitled to his proposed jury instructions. Defendant is required to show that: “(1) the proposed instruction is a correct statement of the law; (2) the evidence in the case supports the theory of defense; (3) the theory of defense is not already part of the charge; and (4) failure to include the proposed instruction would deny the defendant a fair trial.” United States v. Chavis, 429 F.3d 662, 671 (7th Cir.2005). 1. Marriage" }, { "docid": "9645541", "title": "", "text": "“dispose of’: “To dispose of an object is to transfer it to the control of another.” The government argued that .this broad definition of “dispose of’ was supported by two dictionary sources as well as Huddleston v. United States, 415 U.S. 814, 821, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974), in which the Supreme Court held that a pawnbroker “disposes of’ a firearm when he allows a felon to redeem it. Jefferson vigorously opposed this instruction. Jefferson disputed the validity of the selected dictionary definitions and argued that such a broad definition would constructively amend the indictment. The district court, citing United States v. Monteleone, 77 F.3d 1086, 1092 (8th Cir.1996), gave its own jury instruction broadly defining “dispose of’: “The term ‘dispose of as used in the indictment means to transfer a firearm so that the transferee acquires possession of the firearm.” A jury convicted Correy Jefferson on May 13, 2002, and he was sentenced to 21 months in prison. II. We review a district court’s decisions with respect to jury instructions for abuse of discretion, approving on appeal instructions that “fairly and accurately” summarize the law and have support in the record. United States v. Hendricks, 319 F.3d 993, 1004 (7th Cir.2003). However, we determine de novo whether an instruction fairly and accurately summarizes the law or is legally erroneous. United States v. Smith, 308 F.3d 726, 740 (7th Cir.2002); Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir.1999). Jefferson presents the principal subject in dispute, the meaning of “dispose of,” in three ways. First, he argues that the jury instruction as given constituted an improper constructive amendment of the indictment. Second, he argues that the government did not present sufficient evidence to support the jury’s verdict. Finally, he alleges that the jury instruction itself was not a proper statement of the law. The constructive amendment argument does not get Jefferson very far. “[A] constructive amendment occurs where proof at trial goes beyond the parameters of the indictment in that it establishes offenses different from or in addition to those charged by the grand jury. Such" }, { "docid": "23028627", "title": "", "text": "charge. We conclude that the defendants’ Fifth Amendment right to have the jury consider their theory of defense was violated in this case, because even though the record shows that the defendants’ theory of defense at trial was that they were mere purchasers from the conspiracy, the trial court, relying on the pattern jury instructions, did not instruct the jury on this theory. Moreover, we believe that because the defendants’ right to have their defense go to the jury was violated, they were denied a fair trial. We conclude that the jury may well have reached a different result had a buyer-seller instruction been given, and we therefore vacate the defend ants’ convictions, and remand the case for a new trial. A. Initially we must set forth our standard of review. Rule 30 of the Federal Rules of Criminal Procedure contains the requirements for preserving an objection to a district court’s refusal of a proposed jury instruction for appeal. Merely submitting instructions is not sufficient. Instead, a defendant must object, on the record, to the judge’s refusal to tender the defendant’s instructions, and must clearly state the reasons for his or her objections. United States v. Green, 779 F.2d 1313, 1320 n. 6 (7th Cir.1985). Failure to meet the requirements of Rule 30 means that this court will analyze a defendant’s objections on appeal under a “plain error” standard. Green, 779 F.2d at 1319-20; United States v. Brown, 739 F.2d 1136, 1143 (7th Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 268 (1984). In this case, the defendants tendered their proposed instructions. The trial judge, at the instructions conference, refused them. However, after this refusal at the conference, the defendants failed to object. Thus, the defendants did not preserve their objections for appeal, and we must, accordingly, analyze this case under a plain error analysis. Plain error must be of such a great magnitude that it probably changed the outcome of the trial. United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985); see" }, { "docid": "14089921", "title": "", "text": "those acts alone are not sufficient to establish the defendant’s guilt. The district court did not believe that all of Pattern Instruction 5.11 was warranted. It therefore agreed to give the “mere presence” portion of paragraph (a) together with paragraph (b). The defendants maintain, however, that the district court’s failure to include the second paragraph of (a), the “mere association” instruction, deprived them of a fair trial. With respect to a district court’s duty to give a particular jury instruction, this court has stated: It is the well-settled law of this Circuit that a defendant is entitled to a jury instruction on his or her particular theory of defense if: “(1) the instruction represents an accurate statement of the law; (2) the instruction reflects a theory that is supported by the evidence; (3) the instruction reflects a theory which is not already part of the charge; and (4) the failure to include the instruction would deny the appellant a fair trial.” United States v. Linwood, 142 F.3d 418, 422 (7th Cir.1998) (quoting United States v. Edwards, 36 F.3d 639, 645 (7th Cir.1994)). Although a district- court’s refusal to give an instruction on a theory of the defense is reviewed de novo, a district court has “ ‘substantial discretion’ ” regarding “ ‘the specific wording of the instructions, and in rejecting a proposed instruction, so long as the essential points are covered by the instructions given.’ ” United States v. Koster, 163 F.3d 1008, 1011 (7th Cir.1998) (quoting United States v. Scott, 19 F.3d 1238, 1245 (7th Cir.1994)). Evaluating the instruction according to these standards, we find no misstep on the part of-the district court. There is no question that paragraph two of Pattern Instruction 5.11(a) represents an accurate statement of the law. See, e.g., United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985) (reaffirming the proposition that “mere association” with those involved in criminal activity is not enough to prove guilt). Furthermore, it is at least arguable that the instruction was warranted by the evidence, given that most of the defendants knew each other socially before planning the marijuana" }, { "docid": "23511466", "title": "", "text": "defendant’s theory of defense in the jury charge would deny the defendant a fair trial.” Douglas, 818 F.2d at 1320-21. The defendant’s burden of demonstrating that he was entitled to an instruction on his theory of defense is further complicated by the applicable standard of review. In circumstances where the defendant makes a proper objection, we review a district court’s decision regarding the language of a proposed jury instruction for an abuse of discretion, see Spiller v. Brady, 169 F.3d 1064, 1066 (7th Cir.1999), and its decision not to instruct on a theory of defense de novo, see United States v. Meyer, 157 F.3d 1067, 1074 (7th Cir.1998). At trial, the defendant did contest the government’s proposed instruction and requested that the district court instruct the jury that, in order to convict on the conspiracy and importation charges, it had to determine that the defendant knew the imported nature of the heroin. However, “[mjerely submitting instructions is not sufficient” to preserve an objection. Douglas, 818 F.2d at 1320. Rather, “a defendant must object, on the record, to the judge’s refusal to tender the defendant’s instructions, and must clearly state the reasons for his or her objections.” Id. (citing United States v. Green, 779 F.2d 1313, 1320 n. 6 (7th Cir.1986)); see also Fed.R.Crim.P. 30. Here, the defendant’s counsel did not object on the record at the time the district court refused to give the defendant’s proposed instruction, but rather accepted the district court’s representation that the importation instruction contained an implicit knowledge requirement and confirmed that he could argue a lack of knowledge to the jury. As a consequence of his failure to specifically object to the district court’s refusal to offer an explicit theory-of-defense instruction, the defendant has not adequately preserved his objection to the district court’s instructions and we therefore review the defendant’s challenge under the more deferential plain error standard. Douglas, 818 F.2d at 1320. As we noted above, there are circumstances where a pattern instruction will be insufficient and where a criminal defendant is entitled to an explicit jury instruction encapsulating his theory of de fense." }, { "docid": "8514817", "title": "", "text": "prosecute them for that reason. “We review a district court’s decision to deny a motion to dismiss an indictment for an abuse of discretion.” United States v. Alanis, 265 F.3d 576, 584 (7th Cir.2001). We find that the district court did not abuse its discretion by determining that Defendant and Melliani were not similarly situated to the two American co-conspirators. Defendant and Melliani were arguably more culpable because they sought to gain immigration status through the fraudulent marriages. Additionally, there is evidence that the government would have prosecuted Kirklin and Cozadd, had they not agreed to accept immunity in exchange for testimony against Defendant and Mel-liani. KirHin and Cozadd’s decision to cooperate with the government rendered them not “similarly situated” to Defendant and Melliani. See Alanis, 265 F.3d at 585 (“While a criminal defendant is certainly not required to cooperate with the govern ment, it is axiomatic that an individual who decides not to cooperate with the government is not similarly situated to one who does cooperate.”). The government’s decision to offer the United States citizen spouses immunity for testifying against the foreign spouses, who the government deemed to be more culpable, falls within the government’s broad prosecutorial discretion. See, e.g., United States v. Blake, 415 F.3d 625, 627 (7th Cir.2005). C. Jury Instructions Defendant argues that the district court should have accepted his proposed jury instructions on the marriage fraud charge. Without those instructions, Defendant contends, the jury was not informed of all the elements of the marriage fraud offense and he was thereby prejudiced. Additionally, Defendant argues that the district court should have provided a definition of “corruptly persuades” in relation to the witness tampering count. “We review jury instructions de novo to determine whether they provide fair and accurate summaries of the law.” Savino v. C.P. Hall Co., 199 F.3d 925, 934 (7th Cir.1999) (citing United States v. Tingle, 183 F.3d 719, 729 (7th Cir.1999)). However, recognizing that the formulation of jury instructions is not an exact science, the district court is given substantial discretion with respect to the precise wording of jury instructions, so long as" }, { "docid": "15376647", "title": "", "text": "a theory which is not already part of the charge; and (4) the failure to include the instruction would deny the appellant a fair trial.” Id. (citing United States v. Buchmeier, 255 F.3d 415, 426 (7th Cir.2001)). However, “[w]e defer to the substantial discretion of the district court for the specific wording of the instructions, and in rejecting a proposed instruction, so long as the essential points are covered by the instructions given.” United States v. Roster, 163 F.3d 1008, 1011 (7th Cir.1998) (citing United States v. Scott, 19 F.3d 1238, 1245 (7th Cir.1994)). The parties agree that the instruction tendered by Ms. Prude accurately stated the law and was supported by the evidence. They contest, however, whether the instruction offered ultimately was encompassed within the charge as a whole and whether its absence affected the fairness of the proceedings. The critical question is therefore whether the tendered instruction’s substance was part of the charge. In answering this question, we must consider whether the instructions as a whole adequately informed the jury of the theory of defense. See United States v. Given, 164 F.3d 389, 394-95 (7th Cir.1999) (rejecting a claim that a specific good faith instruction was necessary when the jury adequately was apprised of the requirement of intent using the Circuit’s pattern knowledge instruction). We previously have considered and rejected claims that a district court was required to give a good faith theory-of-defense instruction. In those cases, we concluded that the general pattern instruction that “knowledge” means “that the defendant realized what she was doing, was aware of the nature of her conduct, and did not act through ignorance, mistake, or accident,” R.50 at 350, adequately expresses the substance of a good faith defense. See Given, 164 F.3d at 394 (stating that, where the district court “did not use the words ‘good faith,’ but [] did make it clear that” the Government had to prove that the defendant acted with the specific knowledge that was an element of the offense and that the burden would not be met if the defendant acted through “ignorance, mistake or accident,” the" }, { "docid": "14089922", "title": "", "text": "Edwards, 36 F.3d 639, 645 (7th Cir.1994)). Although a district- court’s refusal to give an instruction on a theory of the defense is reviewed de novo, a district court has “ ‘substantial discretion’ ” regarding “ ‘the specific wording of the instructions, and in rejecting a proposed instruction, so long as the essential points are covered by the instructions given.’ ” United States v. Koster, 163 F.3d 1008, 1011 (7th Cir.1998) (quoting United States v. Scott, 19 F.3d 1238, 1245 (7th Cir.1994)). Evaluating the instruction according to these standards, we find no misstep on the part of-the district court. There is no question that paragraph two of Pattern Instruction 5.11(a) represents an accurate statement of the law. See, e.g., United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985) (reaffirming the proposition that “mere association” with those involved in criminal activity is not enough to prove guilt). Furthermore, it is at least arguable that the instruction was warranted by the evidence, given that most of the defendants knew each other socially before planning the marijuana purchase. However, we do not believe that the defendants have established that “the instruction reflects a theory which is not already part of the charge” or that the failure to include the precise language of the instruction deprived them of a fair trial. Linwood, 142 F.3d at 422. The “mere association” instruction is designed to inform the jury that guilt should not follow from one’s association with those who commit crimes; guilt may only be found when the defendant knowingly participated in the criminal activity. In this case, the instructions adequately apprised the jury of this principle. The instructions given to the jury made it clear both that the defendants must have engaged in the conduct knowingly, and that the determination of knowing participation must be individual to each defendant. Specifically, the district court charged that the jury must find that “the defendants knowingly or intentionally attempted to possess the marijuana.” R.91, Government’s Inst. 22. “To ‘attempt,’ ” the court continued, “means that the defendants knowingly took a substantial step toward the commission of the" }, { "docid": "13543206", "title": "", "text": "did submit a “mere presence” instruction and briefly discussed the evidence he claimed would merit giving it to the jury. But merely submitting an instruction is not enough. United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987). “A defendant must object, on the record, to the judge’s refusal to tender the defendant’s instructions, and must clearly state the reasons for his or her objections.” Id. He did not object to the judge’s refusal (and obviously gave no reasons). We therefore review the refusal for plain error. “Plain error must be of such a great magnitude that it probably changed the outcome of the trial.” Id. [A] defendant is entitled to an instruction on his or her theory of defense if: (1) the defendant proposed a correct statement of the law; (2) the defendant’s theory is supported by the evidence; (3) the defendant’s theory of defense is not part of the charge; and (4) the failure to include an instruction on the defendant’s theory of defense in the jury charge would deny the defendant a fair trial. Id. at 1320-21. After reviewing the record, we conclude that Hernandez has failed to meet the second and fourth prongs of this test. As the district court noted in denying Hernandez’s request for the “mere presence” instruction, the defendant had produced no evidence supporting the theory that he was merely present in this house when Tringali called. In fact, this argument was never made during the examination of the witnesses. Where a defendant fails to present a theory of defense during trial, it is not error to refuse an instruction based on “an eleventh-hour idea that materialized at the instruction conference.” United States v. Baker, 40 F.3d 154, 162 (7th Cir.1994). Furthermore, it cannot be said that the failure to include a “mere presence” instruction denied Hernandez a fair trial because the court’s instructions already adequately informed the jury that presence alone was insufficient to convict. The court stated that to be found guilty of conspiracy Hernandez had to “knowingly and intentionally bec[o]me a member of the conspiracy.” The court also instructed the" }, { "docid": "1638670", "title": "", "text": "element of possession, as just defined, is present if you find that the defendant had actual possession, either alone or jointly with others. Aldaco argues that the district judge erred in giving this instruction because it was not germane to the facts of this case. We review the trial judge’s rulings on jury instructions for an abuse of discretion. See United States v. Neville, 82 F.3d 750, 759 (7th Cir.1996). If the jury instructions fairly and accurately summarize the law and have support in the record they will not be disturbed on appeal. See United States v. Wimberly, 79 F.3d 673, 676 (7th Cir.1996). Finally, even if the instruction was erroneous, Aldaco must show actual prejudice to warrant reversal. See United States v. Smith, 131 F.3d 685, 688 (7th Cir.1997). We hold that the district court did not abuse its discretion in giving the instruction on sole and joint possession because the instruction referred to provides a fair and accurate summary of the law as applied to the facts in the case; the fact that there were four men on the rooftop on the night in question supports the need for the instruction on joint possession. See United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976) (instruction on joint possession of gun proper where defendant in car with three other individuals even though defendant argued that there was no evidence of joint possession presented at trial). IY. CONCLUSION We hold that the district court’s denial of Aldaco’s motion to dismiss the indictment was proper because Aldaco failed to present sufficient evidence to establish that the government acted in bad faith in destroying the shotgun in question. We also conclude that the trial court did not abuse its discretion in admitting the government’s test-firing evidence and the replica shotgun over defense counsel’s objections that such evidence unduly prejudiced Aldaco. Further, we hold that the court’s denial of Aldaco’s motion for a mistrial was not improper despite the prosecutor’s comments about the undisputed evidence, defendant’s subpoena power, and the defendant’s character. Finally, the trial judge did not abuse his discretion in" }, { "docid": "15376648", "title": "", "text": "of defense. See United States v. Given, 164 F.3d 389, 394-95 (7th Cir.1999) (rejecting a claim that a specific good faith instruction was necessary when the jury adequately was apprised of the requirement of intent using the Circuit’s pattern knowledge instruction). We previously have considered and rejected claims that a district court was required to give a good faith theory-of-defense instruction. In those cases, we concluded that the general pattern instruction that “knowledge” means “that the defendant realized what she was doing, was aware of the nature of her conduct, and did not act through ignorance, mistake, or accident,” R.50 at 350, adequately expresses the substance of a good faith defense. See Given, 164 F.3d at 394 (stating that, where the district court “did not use the words ‘good faith,’ but [] did make it clear that” the Government had to prove that the defendant acted with the specific knowledge that was an element of the offense and that the burden would not be met if the defendant acted through “ignorance, mistake or accident,” the instructions made the theory of defense “abundantly clear to. the jury”); United States v. Manjarrez, 258 F.3d 618, 627 (7th Cir.2001) (holding that “careful and straightforward explanations of the degree of knowledge and intent that the government must prove,” in addition to an “ostrich instruction,” was sufficient to apprise the jury of the good faith theory of defense). The good faith instruction, particularly when read together with the instructions describing the intent element of the offense, encompasses a defense based on mistake. Ms. Prude’s instruction is more clearly worded and more directly links the relevant concepts for the jury. Nevertheless, the good faith statement accurately stated the law and, taken together with the instructions as to the specific intent element of the offense and the instructions regarding the meaning of knowledge, adequately apprised the jury that it could not conclude that she was mistaken about her eligibility to vote and simultaneously hold her criminally liable for casting a ballot. Any weakness in the instruction because it did not contain the specific language Ms. Prude often" }, { "docid": "2450953", "title": "", "text": "define the term “maliciously” under 18 U.S.C. § 844(i) for the arson charge in the proposed jury instructions. Neither the Seventh Circuit Pattern Jury Instructions nor this court has defined the term. Grady wanted to utilize the definition found in the Eighth Circuit Pattern Jury Instructions whereas the government proposed use of the definition from the Eleventh and Fourth Circuit Pattern Jury Instructions. The district court elected to use the government’s definition, explaining that Grady’s proposed instruction would shift the burden to the government to prove that the defendant acted without justification. The jury found Grady guilty of both arson and intentionally damaging the property of a facility providing reproductive health services. Grady now appeals, asserting that the district court erred in instructing the jury regarding the definition of the term “maliciously” as it appears in the arson statute, 18 U.S.C. § 844(i). II. Analysis We review jury instructions as a whole to determine whether they fairly and accurately summarize the law. United States v. Swan, 250 F.3d 495, 499 (7th Cir.2000). In making this determination, our review of the instructions is de novo. United States v. Quintero, 618 F.3d 746, 753 (7th Cir.2010). We afford considerable discretion to the district court “with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law.” United States v. Lee, 439 F.3d 381, 387 (7th Cir.2006). We will reverse “only if the instructions, when viewed in their entirety, so misguided the jury that they led to appellant’s prejudice.” Quintero, 618 F.3d at 753. The sole issue on appeal is whether the district court fairly and accurately summarized the law with respect to the meaning of the word “maliciously” in the jury instructions. The arson statute under which Grady was charged punishes anyone who “maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce.” 18 U.S.C. § 844(i) (emphasis added). The statute does not define the term “maliciously.” Grady" } ]

[ { "docid": "8310505", "title": "", "text": "of defamation which began in 1985. Lastly, the Court notes that Walsworth was not, after being forewarned by Burd’s letters of the stay violation following the filing of the first cross-complaint, without a remedy. Walsworth could easily have included in the second cross-complaint factual allegations to both the Sigler and Woo-ley/Grannis causes which made it absolutely clear that he was aware of the bankruptcy, aware of the stay, and was pleading and seeking recovery on account of conduct which occurred only after the filing of the petition. He did none of these. For all the foregoing reasons the Court finds this defense unpersuasive. As a final defense Walsworth and Sigler argued that if they did violate the stay they should not be punished because it was not intentional. Not even a “good faith” mistake of law or a “legitimate dispute” as to legal rights relieve a willful violator of the consequences of the act. In Re AM Int’l, Inc., 46 B.R. 566, 577 (Bankr.M.D.Tenn. 1985); In Re Mullarkey, 81 B.R. 280, 284 (Bankr.N.J.1987); see also In Re Bragg, 56 B.R. 46, 50 (Bankr.M.D.Ala.1985) (the [defendant] can be excused for an act committed in ignorance of fact; however, ignorance of the law is no excuse); In Re Elegant Concepts, Ltd., 67 B.R. 914, 920 (Bankr.E.D.N.Y.1986) (lawyer charged with knowledge of the protection that the bankruptcy law afforded a debtor); In Re Watson, 78 B.R. 267, 271 (Bankr.C.D.Cal.1987) (self-inflicted ignorance is no excuse.) The Court finds the defendants’ violation of the automatic stay to be “willful”; the acts of Walsworth were deliberate and intentional. The acts of Walsworth are imputed to Sigler. Haile v. N. Y. State Higher Educ. Servs. Corp., 90 B.R. 51, 55 (Bankr.W.D.N.Y.1988); In Re Allen, 83 B.R. 678, 681 (Bankr.E.D.Mo.1988); In Re Santa Rosa Truck Stop, Inc., 74 B.R. 641, 643 (Bankr.N.D.Fla.1987). Even if Wals-worth did not “believe” that the filing of the cross-complaints were the commencement or continuation of judicial proceedings against debtor, as an attorney who voluntarily elected to represent Sigler in the United States Bankruptcy Court, he had an affirmative duty to either verse himself" } ]

[ { "docid": "9357986", "title": "", "text": "Cir. BAP 1998); Taborski v. United States, 141 B.R. 959, 966 (N.D.Ill.1992); In re Abrams, 127 B.R. 239, 241-44 (9th Cir. BAP 1991). . In re Mullarkey, 81 B.R. 280, 284 (Bankr.D.N.J.1987); Tel-A-Communications Consultants v. Auto-Use (In re Tel-A-Communications Consultants, Inc.), 50 B.R. 250 (Bankr.D.Conn.1985). . See, e.g., Stansbury v. Chester Housing Authority (In re Stansbury), 1990 WL 59180 (Bankr.E.D.Pa.1990); In re Lowry, 25 B.R. 52, 56 (Bankr.E.D.Mo.1982). . Doe v. United States, 976 F.2d 1071, 1085 (7th Cir.1992); Matter of Nat’l Marine Sales & Leasing, Inc., 79 B.R. 442 (Bankr.W.D.Mo.1987). . Respondents rely on In re Whitt, 79 B.R. 611 (Bankr.E.D.Pa.1987) and In re Still, 117 B.R. 251 (Bankr.E.D.Tex.1990). . Section 362(h) (emphasis added). . See, e.g., In re Robinson, 228 B.R. 75, 85 (Bankr.E.D.N.Y.1998). Accord, In re Shade, 261 B.R. 213, 217 (Bankr.C.D.Ill.2001); In re Klein, 226 B.R. 542 (Bankr.D.N.J.1998). . In re Diviney, 225 B.R. at 776. . Id. at 777. Accord, In re Shade, 261 B.R. at 216; In re Klein, 226 B.R. 542 (Bankrr.D.N.J.1998) (which included the nature and extent of the harm to the debtor as an additional factor). . In re Calder, 907 F.2d 953 (10th Cir.1990). . In re Diviney, 225 B.R. at 777. . See, e.g., In re Diviney, 225 B.R. at 778 (affirming a punitive damages award of $40,000); In re Sumpter, 171 B.R. 835, 845 (Bankr.N.D.Ill.1994) (awarding punitive damages equal to compensatory damages, noting that the creditor was probably facing financial problems of its own); In re Shade, 261 B.R. at 216-17 (awarding punitive damages of $9,000); In re Lile, 103 B.R. 830 (Bankr.S.D.Tex.1989), aff’d, 161 B.R. 788 (S.D.Tex.1993), aff'd in part, 43 F.3d 668 (5th Cir.1994) (awarding punitive damages of $100,000)." }, { "docid": "11773182", "title": "", "text": "debtor that arose before the commencement of the case under this title; ... (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against properly of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title ... 11 U.S.C. §§ 362(a)(1), (3), (4), (5). . See also In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th. Cir.1984); Matter of Growth Development Corp., 168 B.R. 1009, 1013 (Bankr.N.D.Ga.1994). . See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), wherein the Supreme Court observed: ITIhe source of the plaintiff's claim to relief assumes a critical importance with respect to the prudential rules of standing that, apart from Art. Ill’s minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting a person in the plaintiff’s position a right to judicial relief. . Accord. In re Goodman, 991 F.2d 613, 619 (9th Cir.1993); In re Chateaugay Corp., 920 F.2d 183, 184-87 (2d Cir.1990). Contra In re Atlantic Business and Community Dev. Corp., 901 F.2d 325, 329 (3rd Cir.1990); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th Cir.1986). . At least one court has concluded that the right of action in section 362(h) extends to individual creditors. See Homer National Bank v. Namie, 96 B.R. 652, 655 (W.D.La.1989). . Section 105, in relevant part, provides: (a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to" }, { "docid": "108926", "title": "", "text": "separate from the contempt power, § 362(h) authorizes the imposition of sanctions for willful violations of the automatic stay, where the debtor is an individual. There is no provision under § 524 analogous to § 362(h). Section 362(h) provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. A recovery under this section is available only to individual debtors, a condition that is satisfied in this case. For the purposes of § 362(h), the Ninth Circuit has defined “willful” as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to [take the action it did] is not relevant to whether the act was “willful” or whether compensation must be awarded. Havelock v. Taxel (In re Pace), 67 F.3d 187, 191 (9th Cir.1995) The only meaningful difference between awarding damages under § 362(h), as opposed to damages for contempt, is that relief under § 362 is mandatory, while relief under contempt is discretionary. California Employment Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152-53 (9th Cir.1996); Pace, 67 F.3d at 193. Damages awarded under § 362(h) are statutory damages, not damages based on contempt. See Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 589 (9th Cir. BAP 1995), appeal dismissed, 201 F.3d 444, 1999 WL 831916 (9th Cir. 1999) (awarding damages under § 362(h) at time when Ninth Circuit case law denied contempt power to bankruptcy courts). The court finds that the actions by Associates after November 28, 1997 were willful, for contempt purposes. Associates learned on that date that the debtors had filed a bankruptcy case, invoking the automatic stay. Nonetheless, Associates thereafter undertook many direct, harassing, coercive collection efforts toward plaintiffs during the automatic stay. These" }, { "docid": "23515225", "title": "", "text": "it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. 83 B.R. at 165. See, e.g., Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Bus. and Community Corp.), 901 F.2d 325, 329 (3rd Cir.1990). In the context of determining whether a debt is nondischargeable under § 523(a)(6) as arising from a “willful and malicious injury,” the Tenth Circuit construed “willful” to mean conduct that was “volitional and deliberate” and over which a debtor exercised meaningful control, as opposed to unintentional or accidental conduct. C.I.T. Fin. Servs., Inc., v. Posta (In re Posta), 866 F.2d 364, 367 (10th Cir. 1989). While the Supreme Court’s recent decision in Kawaauhau v. Geiger, —— U.S. -, ---, 118 S.Ct. 974, 977-78, 140 L.Ed.2d 90 (1998), rejected the Tenth Circuit’s interpretation of § 523(a)(6), see Berger v. Buck (In re Buck), 220 B.R. 999, 1004 (10th Cir. BAP 1998), we believe the Posta definition accords with that offered in INSLAW and indicates the Tenth Circuit would approve the IN-SLAW approach to willfulness under § 362(h). We think the narrower Geiger standard should not be applied to § 362(h) because a party who willfully violates the automatic stay had the opportunity to seek permission from the bankruptcy court before taking actions that might violate the automatic stay, while determinations of “willful and malicious injury” under § 523(a)(6) are made only after the debtor has acted without the opportunity to obtain a protective ruling from a court before acting. The Bank argues its conduct was not willful because it did not have adequate notice that the Third Case had been reinstated and that the automatic stay was again applicable. We first note that the bankruptcy court did not find the Bank had notice of the reinstatement of the case and possible applicability of the stay before it repossessed the Car, but only that it received such notice when Ms. Diviney called it on the first business day after the repossession." }, { "docid": "6880321", "title": "", "text": "matter, that the violation of the automatic stay was willful, it must award Smith actual damages as well as costs,.and attorney’s fees. In a recent decision of the United States Court of Appeals for the First Circuit, the question of whether a violation of the automatic stay was willful stated as follows: A willful violation [of the automatic stay] does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. See Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2nd Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat'l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor -with actual notice. Once the creditor receive actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. See Mitchell Const. Co., Inc., v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr.N.D.Ga.1995). Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999) (bracketed matter added); see also Jove Engineering, Inc. v. Internal Revenue Service, 92 F.3d 1539, 1555 (11th Cir.1996) (“willfulness generally connotes intentional action taken with at least callous indifference for the consequences”). In Kaneb, the First Circuit, let stand an award of $25,000.00 for “emotional distress” as a result of the wrongful filing of a complaint to foreclose a mortgage. In re Kaneb, 196 F.3d at 270. After Kaneb filed a Chapter 13 petition in bankruptcy, Fleet Mortgage moved for relief from the automatic stay. The motion was denied by the bankruptcy court. As a result of a miscommunication among counsel, a foreclosure complaint was" }, { "docid": "22117870", "title": "", "text": "as well as natural persons. See Cuffee v. Atlantic Business and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990) (“Although Section 362(h) refers to an individual, the section has uniformly been held to be applicable to a corporate debtor.”); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th Cir.1986) (“[W]e construe the word 'individual' to include a corporate debtor.”). Applying principles of statutory construction enunciated in United States v. Ron Pair Enter., Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), however, the Second Circuit has concluded “individual” does not include a corporate debtor. Maritime Asbestosis Legal Clinic v. LTV Steel Co., Inc. (In re Chateaugay Corp.), 920 F.2d 183, 184-87 (2d Cir.1990). Lower courts are likewise split. Compare, e.g., Mallard Pond Partners v. Commercial Bank & Trust Co. (In re Mallard Pond Partners), 113 B.R. 420, 423 (Bankr.W.D.Tenn.1990) (“[T]he word ‘individual’ is construed to include a partnership (or corporate) debtor.”); Schewe v. Fairview Estates (In re Schewe), 94 B.R. 938, 948 (Bankr.W.D.Mich.1989) (“An ‘individual’ as set forth in § 362(h) may include a corporate entity.”); Tel-A-Communications Consultants, Inc. v. Auto-Use (In re Tel-A-Communications Consultants, Inc.), 50 B.R. 250, 254 (Bankr.D.Conn.1985) (holding § 362(h) should be construed more broadly than its literal language and should be read in conjunction with all of § 362) with In re MCEG Productions, Inc., 133 B.R. 232, 236 (Bankr.C.D.Cal.1991) (“Although ‘individual’ is not a defined term in the Code, Congress’ use of the term can leave no doubt that it is limited to a natural person.”); In re Prairie Truck Ry., 125 B.R. 217, 220 (Bankr.N.D.Ill.1991) (“[Ojnly natural persons can recover damages as individuals under section 362(h).”); First RepublicBank Corp. v. NCNB Texas Nat'l Bank (In re First RepublicBank Corp., 113 B.R. 277, 279 (Bankr.N.D.Tex.1989)) (holding a corporation cannot recover damages under § 362(h)). We conclude that the Second Circuit’s determination in Chateaugay is correct: “individual” means individual, and not a corporation or other artificial entity. The Fourth and Third Circuit’s analysis is inconsistent with the principles of statutory" }, { "docid": "23515224", "title": "", "text": "was “willful” under 11 U.S.C. § 362(h). That provision reads: “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” The Bank argues that its conduct was not willful because it did not have sufficient no tice of the reimposition of the stay. We must affirm the bankruptcy court’s factual finding that the Bank’s conduct was willful unless we conclude the finding was clearly erroneous. The Tenth Circuit has not defined “willful” as it is used in § 362(h). Many courts have adopted the definition enunciated by the court in INSLAW, Inc., v. United States (In re INSLAW, Inc.), 83 B.R. 89 (Bankr.D.D.C.1988): A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for . damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. 83 B.R. at 165. See, e.g., Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Bus. and Community Corp.), 901 F.2d 325, 329 (3rd Cir.1990). In the context of determining whether a debt is nondischargeable under § 523(a)(6) as arising from a “willful and malicious injury,” the Tenth Circuit construed “willful” to mean conduct that was “volitional and deliberate” and over which a debtor exercised meaningful control, as opposed to unintentional or accidental conduct. C.I.T. Fin. Servs., Inc., v. Posta (In re Posta), 866 F.2d 364, 367 (10th Cir. 1989). While the Supreme Court’s recent decision in Kawaauhau v. Geiger, —— U.S. -, ---, 118 S.Ct. 974, 977-78, 140 L.Ed.2d 90 (1998), rejected the Tenth Circuit’s interpretation of § 523(a)(6), see Berger v. Buck (In re Buck), 220 B.R. 999, 1004 (10th Cir. BAP 1998), we believe the Posta" }, { "docid": "9419248", "title": "", "text": "circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”). We decline to address Fleet’s “no violation” argument. Instead, we accept the conclusion that there was a violation of the automatic stay and review the trial court’s determination that this violation was willful. The trial court found that, “Despite knowing that the stay was still in force, on April 26, 1996 Shawmut forwarded its file to the law firm of Shapiro & Fishman ... for the purpose of initiating foreclosure on the property.” Fleet argues that this action was simply an innocent mistake. Further, Fleet contends that its actions were not willful because they were not taken with “flagrant or reckless disregard” for its legal obligations. Fleet cites no authority for its “flagrant or reckless disregard” standard and our research discloses none. We decline to create a new standard for willfulness. We similarly reject Fleet’s argument that it is immune from sanctions because it made a mistake’. A good faith belief in a right to the property is not relevant to a determination of whether the violation was willful. See Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 483 (9th Cir.1989), (quoting INSLAW, Inc. v. United States (In re INSLAW, Inc.), 83 B.R. 89, 165 (Bankr.D.D.C.1988)). A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. See Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has" }, { "docid": "9357985", "title": "", "text": "224, 227 (9th Cir.1989); In re Crysen/Montenay Energy Co., 902 F.2d 1098 (2d Cir.1990); In re Atlantic Bus. and Cmty. Corp., 901 F.2d at 329; Budget Serv. Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 290 (4th Cir.1986). Jardine’s Prof'l Collision Repair, Inc. v. Gamble, 232 B.R. 799 (D.Utah 1999), cited by the Respondents, applies a narrower definition of willful (requires a deliberate and intentional violation of the stay) based in part on a Supreme Court case in the context of a Section 523(a)(6) objection to dischargeability of a debt, construing the word \"willful” as modifying the word “injury.\" This construction is inconsistent with the fact that objections to dischargeability are narrowly construed because discharge is favored, while the automatic stay is a fundamental protection given to the debtor designed to stop all activity by creditors against the debtor or property of the estate during the pendency of a case, unless and until modified by court order. . In re Diviney, 225 B.R. at 776; In re Carrigg, 216 B.R. 303, 304-5 (1st Cir. BAP 1998); Taborski v. United States, 141 B.R. 959, 966 (N.D.Ill.1992); In re Abrams, 127 B.R. 239, 241-44 (9th Cir. BAP 1991). . In re Mullarkey, 81 B.R. 280, 284 (Bankr.D.N.J.1987); Tel-A-Communications Consultants v. Auto-Use (In re Tel-A-Communications Consultants, Inc.), 50 B.R. 250 (Bankr.D.Conn.1985). . See, e.g., Stansbury v. Chester Housing Authority (In re Stansbury), 1990 WL 59180 (Bankr.E.D.Pa.1990); In re Lowry, 25 B.R. 52, 56 (Bankr.E.D.Mo.1982). . Doe v. United States, 976 F.2d 1071, 1085 (7th Cir.1992); Matter of Nat’l Marine Sales & Leasing, Inc., 79 B.R. 442 (Bankr.W.D.Mo.1987). . Respondents rely on In re Whitt, 79 B.R. 611 (Bankr.E.D.Pa.1987) and In re Still, 117 B.R. 251 (Bankr.E.D.Tex.1990). . Section 362(h) (emphasis added). . See, e.g., In re Robinson, 228 B.R. 75, 85 (Bankr.E.D.N.Y.1998). Accord, In re Shade, 261 B.R. 213, 217 (Bankr.C.D.Ill.2001); In re Klein, 226 B.R. 542 (Bankr.D.N.J.1998). . In re Diviney, 225 B.R. at 776. . Id. at 777. Accord, In re Shade, 261 B.R. at 216; In re Klein, 226 B.R. 542 (Bankrr.D.N.J.1998) (which included the nature and extent" }, { "docid": "18573881", "title": "", "text": "by any willful violation of a stay provided by the section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h) (emphasis added). While the statute is clear on its face, the definition of “individual” is not. Indeed, “individual” not being defined in the Code, has led to confusion and a significant split over whether section 362(h) should be applied to corporations. However, an analysis of the plain language of the Code and legislative history yields a rather obvious result; section 362(h) does not apply to corporations. Johnston Envtl. Corp. v. Knight {In re Goodman), 991 F.2d 613, 619 (9th Cir.1993); Maritime Asbestosis Legal Clinic v. LTV Steel Co., Inc. (In re Chateaugay Corp.), 920 F.2d 183, 186 (2d Cir.1990); In re Abacus Broadcasting Corp., 150 B.R. 925, 928 (Bankr.W.D.Tex.1993); In re MCEG Productions, Inc., 133 B.R. 232, 236 (Bankr.C.D.Cal.1991); In re Prairie Truck Ry., 125 B.R. 217, 220 (Bankr.N.D.Ill.1991); FirstRepublic Bank Corp. v. NCNB Texas Nat’l. Bank {In re First Republic Bank Corp.), 113 B.R. 277, 279 (Bankr.N.D.Tex.1989); In re Brilliant Glass, Inc., 99 B.R. 16, 18 (Bankr.C.D.Cal. 1988). But see Cuffee v. Atlantic Business and Community Dev. Corp. (In re Atlantic Business and Community Dev. Corp.), 901 F.2d 325, 329 (3rd Cir.1990) (section 362(h) applies to corporations); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th Cir.1986) (same); In re Omni Graphics, Inc., 119 B.R. 641, 644 (Bankr.E.D.Wis.1990) (same); In re Mallard Pond Partners, 113 B.R. 420, 423 (Bankr.W.D.Tenn.1990); In re Schewe, 94 B.R. 938, 948 (Bankr.W.D.Mich.1989); In re Tel-A-Communications Consultants, Inc., 50 B.R. 250, 254 (Bankr.D.Conn.1985). The Code does not define “individual,” but does define “person.” “Persons” include “individuals, partnerships and corporations.” 11 U.S.C. § 101(41). If corporations were “individuals,” there would be no need to specifically include them in the definition of “persons.” This distinction was intentional as it appears in other parts of the Code. Take for instance section 109(e) where Congress specifically provides that Chapter 13 is available only to- an “individual with regular income ... or an" }, { "docid": "18573882", "title": "", "text": "113 B.R. 277, 279 (Bankr.N.D.Tex.1989); In re Brilliant Glass, Inc., 99 B.R. 16, 18 (Bankr.C.D.Cal. 1988). But see Cuffee v. Atlantic Business and Community Dev. Corp. (In re Atlantic Business and Community Dev. Corp.), 901 F.2d 325, 329 (3rd Cir.1990) (section 362(h) applies to corporations); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th Cir.1986) (same); In re Omni Graphics, Inc., 119 B.R. 641, 644 (Bankr.E.D.Wis.1990) (same); In re Mallard Pond Partners, 113 B.R. 420, 423 (Bankr.W.D.Tenn.1990); In re Schewe, 94 B.R. 938, 948 (Bankr.W.D.Mich.1989); In re Tel-A-Communications Consultants, Inc., 50 B.R. 250, 254 (Bankr.D.Conn.1985). The Code does not define “individual,” but does define “person.” “Persons” include “individuals, partnerships and corporations.” 11 U.S.C. § 101(41). If corporations were “individuals,” there would be no need to specifically include them in the definition of “persons.” This distinction was intentional as it appears in other parts of the Code. Take for instance section 109(e) where Congress specifically provides that Chapter 13 is available only to- an “individual with regular income ... or an individual with regular income and such individual’s spouse.... ” 11 U.S.C. § 109(e). Corporations do not have spouses. Nor can corporations be relatives under the Code. A “relative” is defined as an “individual related by affinity or consanguinity within the third degree as determined by the common law, or individual in a step or adoptive relationship within such third degree.” 11 U.S.C. § 101(45). Obviously, Congress was talking about humans when it used “individual” in its definition of “relative.” Further evidence that Congress used “individual” to mean a natural person and not a “corporation” is found in the sections discussing insiders. Congress deliberately defined “insider” twice. Once when the debtor is an “individual” and another when the debtor is a “corporation.” See 11 U.S.C. § 101(30)(A) & (B). Such unequivocal specificity is evidence of Congress’ express desire that a corporations is not an individual. When Congress speaks as clearly as it has done here, the plain meaning of the legislation is conclusive, except in those “rare cases” in which the literal application of a statute" }, { "docid": "16978336", "title": "", "text": "269 (1st Cir.1999) (explaining that any intentional act is willful with knowledge of the stay); Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor with actual notice. Where a party has actual knowledge of the bankruptcy, and despite such knowledge intentionally undertakes actions that in fact violate the stay, the party’s ignorance of the legal effect of the stay is no defense. In re Manuel, 212 B.R. 517 (Bankr.E.D.Va.1997); In re Peterkin, 102 B.R. 50, 53-54 (Bankr.E.D.N.C.1989). Debtor must establish by preponderance of the evidence that Defen dant willfully violated the automatic stay under § 362(k). E.g., In re Johnson, 501 F.3d 1163, 1171 (10th Cir.2007); see also Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 404-05 (1st Cir. BAP 2004). The debtor has the burden of providing the creditor with actual notice. Once the creditor receives actual notice, the burden shifts to the creditor to prevent violations of the automatic stay. See Mitchell Const Co., Inc. v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr.N.D.Ga.1995). Applying this standard to the facts, the evidence produced at trial was sufficient to establish that Defendant sold the car post-petition. Trial testimony revealed that both Debtor’s counsel and Debtor called Defendant’s office; Debtor’s counsel spoke to Mr. Friedman on the phone in the evening of September 22, 2006; and Debtor’s counsel wrote a letter delivered by facsimile and mail demanding turnover of Debtor’s vehicle on September 22, 2006. Mr. Friedman or other employees of the Defendant never stated that the car was sold on September 22, 2006. Defendant produced no evidence to refute that the sale of" }, { "docid": "9357984", "title": "", "text": "430. . See, e.g., In re Canney, 284 F.3d 362, 375 (2d Cir.2002); Fed. Land Bank v. Heiserman (In re Heiserman), 78 B.R. 899, 902 (Bankr. C.D.Ill.1987). . In re Thomas, 87 B.R. at 656. . In re St. Clair, 251 B.R. 660 (D.N.J.2000), aff'd, 281 F.3d 224 (3d Cir.2001). .See, e.g., C.R.S. § 38-22-113(3) (\"Proceedings to foreclose and enforce mechanics’ liens under this article are actions in rem ....\"); C.R.S. § 31-25-1104 (\"[Tjhe taxing authority may institute a proceeding in the nature of an action in rem ....”). . In re St. Clair, 251 B.R. at 667 n. 5. See also Cuffee v. Atlantic Bus. & Cmty. Corp. (In re Atlantic Bus. & Cmty. Corp.), 901 F.2d 325, 328 (3d Cir.1990) (holding that mere possession is protected); In re 48th St. Steakhouse, Inc., 835 F.2d at 430 (same). . In re Atlantic Bus. & Cmty. Corp., 901 F.2d at 328. . Section 362(h). .In re Diviney, 225 B.R. 762, 774 (10th Cir. BAP 1998). See also, Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); In re Crysen/Montenay Energy Co., 902 F.2d 1098 (2d Cir.1990); In re Atlantic Bus. and Cmty. Corp., 901 F.2d at 329; Budget Serv. Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 290 (4th Cir.1986). Jardine’s Prof'l Collision Repair, Inc. v. Gamble, 232 B.R. 799 (D.Utah 1999), cited by the Respondents, applies a narrower definition of willful (requires a deliberate and intentional violation of the stay) based in part on a Supreme Court case in the context of a Section 523(a)(6) objection to dischargeability of a debt, construing the word \"willful” as modifying the word “injury.\" This construction is inconsistent with the fact that objections to dischargeability are narrowly construed because discharge is favored, while the automatic stay is a fundamental protection given to the debtor designed to stop all activity by creditors against the debtor or property of the estate during the pendency of a case, unless and until modified by court order. . In re Diviney, 225 B.R. at 776; In re Carrigg, 216 B.R. 303, 304-5 (1st" }, { "docid": "11773183", "title": "", "text": "of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting a person in the plaintiff’s position a right to judicial relief. . Accord. In re Goodman, 991 F.2d 613, 619 (9th Cir.1993); In re Chateaugay Corp., 920 F.2d 183, 184-87 (2d Cir.1990). Contra In re Atlantic Business and Community Dev. Corp., 901 F.2d 325, 329 (3rd Cir.1990); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292 (4th Cir.1986). . At least one court has concluded that the right of action in section 362(h) extends to individual creditors. See Homer National Bank v. Namie, 96 B.R. 652, 655 (W.D.La.1989). . Section 105, in relevant part, provides: (a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a). . See also In re Skinner, 917 F.2d 444, 447 (10th Cir.1990). . Matter of Lemco Gypsum, Inc., 95 B.R. 860, 863 (Bankr.S.D.Ga.1989) (quoting In re Miller, 81 B.R. 669, 675 (Bankr.M.D.Fla.1988)), rev’don other grounds, 910 F.2d 784 (11th Cir.1990). . In re Prairie Trunk Railway, 125 B.R. 217, 222 (Bankr.N.D.Ill.1991), aff'd sub nom, 173 B.R. 146 (N.D.Ill.1992). See also In re Prairie Trunk Railway, 112 B.R. 924, 929-30 (Bankr.N.D.Ill.1990) (same case, earlier stage in proceedings); Matter of Reserves Development Corp., 64 B.R. 694, 699-700 (W.D.Mo.1986), rev’d on other grounds, 821 F.2d 520 (8th Cir.1987). Contra In re Silverman, 42 B.R. 509 (Bankr.S.D.N.Y.1984); In re Stivers, 31 B.R. 735 (Bankr.N.D.Cal.1983). . See e.g., Matter of Reserves Development Corp., supra, 64 B.R. at 699; In re Prairie Trunk Railway, supra, 112 B.R. at 928. The court is aware that both Reserves" }, { "docid": "14255338", "title": "", "text": "both the letter of July 1, 1997, and a subsequent telephone call from debtor’s counsel. He and his office manager both testified that they believed they were doing all that was required, that they did not intend to disregard bankruptcy law requirements, and that they were aware that debt- or’s bankruptcy precluded their recovery under the garnishment. They did not intend to contest this result. The court accepts Ritchie’s evidence that he did not believe he was in violation of the stay by failing to dismiss the garnishment. However, his belief does not preclude a finding of willful violation. A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statue provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (quoting INSLAW, Inc. v. U.S. (In re INSLAW), 83 B.R. 89, 165 (Bankr.D.D.C.1988)). See also, Cuffee v. Atl. Bus. and Community Dev. Corp. (In re Atl. Bus. and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292-93 (4th Cir.1986). Judge Hal Bonney of this district held in Baum v. United Va. Bank (In re Baum), 15 B.R. 538 (Bankr.E.D.Va.1981), that a creditor has a “responsibility to stop the downhill snowballing of a continuing garnishment.” Baum, 15 B.R. at 541. In Baum, the judgment creditor was held in contempt for failing to release the garnishment. See also, In re Mims, 209 B.R. at 748-49; In re Gray, 97 B.R. 930, 934 (Bankr.N.D.Ill.1989); Carlsen v. Internal Revenue Service (In re Carlsen), 63 B.R. 706, 710-11 (Bankr.C.D.Cal.1986). The court concludes that Ritchie, having an affirmative obligation not to continue a violation of the automatic stay, acted willfully when he failed to promptly dismiss the garnishment against debtor’s wages." }, { "docid": "1116126", "title": "", "text": "stay are set forth in § 362(h), which provides that: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. Hence, for an individual to recover damages for a violation of the stay, willfulness must be proven. The case law suggests that the standard imposed by § 362(h) is less stringent than bad faith or maliciousness. See Crysen/Montenay Energy Co. v. Esselen Associates (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104-05 (2d Cir.1990); Cuffee v. Atlantic Business and Community Dev. Corp. (In re Atlantic Business and Community Corp., 901 F.2d 325, 329 (3d Cir.1990)); In re Taylor, 884 F.2d 478, 482-83 (9th Cir.1989); In re Bloom, 875 F.2d 224, 227 (9th Cir.1989); Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 292-98 (4th Cir.1986). See also In re University Medical Center, 125 B.R. 121, 128 (E.D.Pa.1991). It has been stated that “any deliberate act taken in violation of a stay, which the violator knows to be in existence, justi fies an award of actual damages.” Crysen/Montenay, 902 F.2d at 1105. See also University Medical, 125 B.R. at 125-28; Perry v. Fifth Third Bank of Toledo (In re Perry), 124 B.R. 50, 51-52 (Bankr.N.D.Ohio 1990). Specific intent is not a prerequisite to a finding of willfulness. Atlantic Business, 901 F.2d at 329; Bloom, 875 F.2d at 227; Express America, Inc. v. Pierce (In re Express America, Inc.), 132 B.R. 535, 540 (Bankr.W.D.Pa.1991). Restated, § 362(h) provides for damages if (1) the defendant knew of the automatic stay and (2) if the actions which violated the stay were intentional. Brockington, 129 B.R. at 70 (citations omitted). A lack of knowledge or notice of a bankruptcy case by a creditor means that his action was not willful, and, therefore, not contemptuous. Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); Anglemyer v. United States, 115 B.R. 510, 514 (D.Md.1990); In re Holman, 92" }, { "docid": "17231939", "title": "", "text": "fact that an individual should be defined not as an entity, but rather as a natural person, a being, or a physical bodily person. In re Abacus Broadcasting Corp., 150 B.R. 925, 927 (Bankr.W.D.Tex.1993); In re Prairie Trunk Ry., 125 B.R. 217, 220-21 (Bankr.N.D.Ill.1991). The Bankruptcy Code could not have used the term ‘person,’ as that word also denotes business or corporate entities for several Constitutional issues. This Court concludes that the Rainwaters are individuals within the context and meaning of the Bankruptcy Code. 3. Element Three — Willful Violation of a Stay Provided By § 362 The third element requires that the defendants willfully violated the stay provided by § 362. The test for determining whether a violation of an automatic stay is willful is: (1) whether the appellee knew of the stay, and (2) whether appellee’s actions, which violated the automatic stay, were intentional. Jove, 92 F.3d at 1555-57 (11th Cir.1996); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Bus. and Community Dev. Corp.), 901 F.2d 325 (3rd Cir.(N.J.)1990); In re Bloom, 875 F.2d 224 (9th Cir.1989). Knowledge of the bankruptcy filing is the legal equivalent of knowledge of the automatic stay provided under § 362. In re Stewart, 190 B.R. 846, 849 (Bankr.C.D.Ill.1996); Wagner v. Ivory (In re Ivory), 74 B.R. 898, 904 (Bankr.E.D.Pa.1987). Furthermore, in determining whether the violation was willful, it is irrelevant whether the party believed in good faith that it had a right to the property at issue. In re Lile, 103 B.R. 830, 836-37 (Bankr.S.D.Tex.1989). Not even a “good faith” mistake of fact or law, or a “legitimate dispute” as to legal rights relieve a willful violator of the consequences of his act. Accord Nelson v. Taglienti (In re Nelson), 994 F.2d 42, 44 (1st Cir.1993); In re AM Int’l, Inc., 46 B.R. 566, 577 (Bankr.M.D.Tenn.1985). A creditor takes a calculated risk when it undertakes to make its own determination of what the stay means and fails to obtain clarification from the bankruptcy court to determine whether the its actions will violate the automatic stay. In re Gray, 97" }, { "docid": "4150050", "title": "", "text": "IRS The Second, Third, Fourth, and Ninth Circuits have adopted a standard for assessing whether or not a violation of the automatic stay is willful under 11 U.S.C. § 362(h). A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded. Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (quoting INSLAW, Inc. v. United States, 83 B.R. 89, 165 [Bankr. D.D.C.1988]); see also In re Bulldog Trucking, Inc., 68 F.3d 459, 1995 WL 613043 *3 (4th Cir. Oct. 19, 1995); In re Atlantic Business & Community Corp., 901 F.2d 325, 329 (3rd Cir.1990); Crysen/Montenay Energy Co. v. Esselen Assoc., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2nd Cir.1990) (“[A]ny deliberate act taken in violation of a stay, which the violator knows to be in existence, justifies an award of actual damages.”); Cash America Pawn, L.P. v. Murph, 209 B.R. 419, 424 (E.D.Tex.1997); Taborski v. United States Internal Revenue Service, 141 B.R. 959, 966 (N.D.Ill. 1992); In re Washington, 172 B.R. 415, 419 (Bankr.S.D.Ga.1994) (conduct is willful “when an individual engages in a deliberate act that is done in violation of the automatic stay with knowledge that the debtor has filed a petition in bankruptcy”), aff’d in part, vacated in part on other grounds, United States v. Washington (In re Washington), 184 B.R. 172 (S.D.Ga.1995); In re Craine, 206 B.R. 594, 596-97 (Bankr.M.D.Fla.1997); In re Clarkson, 168 B.R. 93, 94-95 (Bankr.D.S.C. 1994); Smith v. GTE North Inc. (In re Smith), 170 B.R. 111, 115 (Bankr.N.D.Ohio 1994); In re Suarez, 149 B.R. 193, 196 (Bankr.D.N.M.1992) (adopting the Bloom standard in determining that spouse’s attempt to garnish wages is a willful violation of the automatic stay); In re Johnson, 138 B.R. 352, 354 (Bankr.D.R.I.1992). Although" }, { "docid": "3932473", "title": "", "text": "recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h) (emphasis added). The term “individual” is not explicitly defined in the Bankruptcy Code. Consolidated Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147 (N.D.Ill.1992). The Seventh Circuit has not yet addressed whether a corporation or trustee is an individual for purposes of § 362(h). The circuits to have addressed the issue are split. Five circuits have held that “individual” includes only natural persons and not corporations, trustees, or other entities. Spookyworld Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346 F.3d 1, 7-8 (1st Cir.2003); Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corp. Sys., Inc.), 108 F.3d 881, 884-85 (8th Cir.1997); Jove Eng’g, Inc. v. IRS, 92 F.3d 1539, 1549-53 (11th Cir.1996); Havelock v. Taxel (In re Pace), 67 F.3d 187, 192-93 (9th Cir.1995); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619-20 (9th Cir.1993); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 184-86 (2d Cir.1990). Two circuits have held that “individual” is not narrowly limited but instead also includes corporate debtors. Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir.1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir.1986). Courts within this circuit are similarly split, although the majority have held that a corporation is not an “individual” for purposes of § 362(h). Compare In re Midway Indus. Contractors, Inc., 178 B.R. 734, 737-38 (N.D.Ill.1995); Consolidated Rail Corp., 173 B.R. at 147; In re Glenn, 379 B.R. 760, 762-64 (Bankr.N.D.Ill.2007); In re Fashions USA Inc., 301 B.R. 528, 529 (Bankr.C.D.Ill. 2003); and In re Bequette, 184 B.R. 327, 335 (Bankr.S.D.Ill.1995) (corporation cannot recover damages under § 362(h)), with Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 437-39 (N.D.Ill.1995), and In re A & C Elec. Co., 188 B.R. 975, 979 (Bankr.N.D.Ill.1995) (corporation can recover damages under § 362(h))." }, { "docid": "16978335", "title": "", "text": "A. Defendant’s sale of Debtor’s vehicle constitutes a willful violation of the automatic stay. Section 362(a) provides protection of the automatic stay against the debtor or property of the estate. Automatic stay protection coincides with the commencement of the debtor’s bankruptcy petition. Because the pawn transaction is void, the next question before the Court is whether Defendant sold Debtor’s vehicle prior to the commencement of her bankruptcy filing. The timing of the sale of the vehicle in relation to Debtor’s bankruptcy filing is critical to the question of whether Defendant’s sale of Debtor’s vehicle constituted a willful violation of the automatic stay pursuant to 11 U.S.C. § 362(k)(l). Until the bankruptcy petition is filed, there is no automatic stay protection. A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(k) is met if there is knowledge of the stay and the defendant intended the actions which constitute the violation. Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999) (explaining that any intentional act is willful with knowledge of the stay); Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); see also Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir.1990); Cuffee v. Atlantic Bus. and Community Dev. Corp. (In re Atlantic Business and Community Corp.), 901 F.2d 325, 329 (3d Cir.1990). In cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. See Homer Nat’l Bank v. Namie, 96 B.R. 652, 654 (W.D.La.1989). The debtor has the burden of providing the creditor with actual notice. Where a party has actual knowledge of the bankruptcy, and despite such knowledge intentionally undertakes actions that in fact violate the stay, the party’s ignorance of the legal effect of the stay is no defense. In re Manuel, 212 B.R. 517 (Bankr.E.D.Va.1997); In re Peterkin, 102 B.R. 50, 53-54 (Bankr.E.D.N.C.1989). Debtor must establish by preponderance of the evidence that Defen dant willfully violated the" } ]

[ { "docid": "2254059", "title": "", "text": "denying reimbursement of Live Gold’s attorney’s fees and granting the State’s motion to dismiss. In his order, Judge Debevoise held that Live Gold was not a prevailing party because he “did not enter a preliminary injunction or any other order on the merits of the case.” He also concluded that the State voluntarily changed its position, stating that “[w]hile it may be true that this court’s involvement aided in the resolution of the constitutional issues between the parties, the fact remains that the issues were not resolved as the result of a court order.” In granting the State’s motion to dismiss, Judge Debevoise concluded that Live Gold’s claims were moot in light of the parties’ agreement that the preliminary injunction hearing had resolved all of Live Gold’s constitutional claims. In this appeal, Live Gold challenges only the denial of attorney’s fees. II. Governing Precedent To be eligible to make a prevailing-party claim under § 1988, the plaintiff must, “at a minimum, ... be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The change must be “judicially sanctioned,” Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), and must “achieve! ] some of the benefit the part[y] sought in bringing suit,” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotation marks and citation omitted). A “voluntary change in conduct ... lacks the necessary judicial imprimatur on the change.” Buckhannon, 532 U.S. 598-99, 121 S.Ct. 1835. In other words, “a plaintiff does not become a ‘prevailing party’ solely because his lawsuit causes a voluntary change in the defendant’s conduct.” People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 232 (3d Cir.2008) (“PPAV”). Rather, the change in the parties’ legal relationship must be the product of judicial action. See Buckhannon, 532 U.S. at 605-06, 121 S.Ct. 1835." } ]

[ { "docid": "20292035", "title": "", "text": "1, 2008, resulted in the Does leaving the courthouse emptyhanded, their initial success having been undone without a change in the parties’ legal relationship. We conclude that this is the type of transient victory that the Supreme Court has indicated is not entitled to an award under a fee-shifting provision; See Sole, 551 U.S. at 78, 127 S.Ct. 2188. As we have noted, “a claimant is not a prevailing party merely by virtue of having acquired a judicial pronouncement unaccompanied by judicial relief.” Rogers Group, 683 F.3d at 910 (internal quotation marks omitted). Although the district court’s order granting the preliminary, injunction may have served as a court-ordered change in the parties’ legal relationship, this change was never realized because of our stay of that order. Thus, the district court’s October 27, 2008, order effectively served as a judicial pronouncement without judicial relief and did not confer prevailing party status upon the Does. 2. Dismissal on Mootness Grounds The Does argue next that the district court’s order dismissing their case on mootness grounds confers prevailing par ty status upon them. The Does contend that the Officials’ “admissions forced a judicial order recognizing § 589.426 cannot be applied to. Plaintiffs and, only after the admission was judicially sanctioned, Plaintiffs’ claims are, arguably, moot.” Appel-lees/Cross-Appellants’ Principal and Resp. Br. 19-20. Moreover, “[n]ow that Defendants have achieved dismissal of Plaintiffs’ case as moot based on their admissions, Defendants are bound by those admissions.” Id. at 20. The. Does, however, miss the point that underscores the Officials’ admission; it was a voluntary action taken by the Officials’ in the Does’ lawsuit. The Does implicitly acknowledge this fact later, by arguing that the decision in F.R. “certainly provided writing on the wall, ... [but it] did not prevent Defendants from fighting on in the district court or from attempting to enforce § 589.426 against Plaintiffs.” Id. at 21. What ultimately halted the Officials was not a judicially sanctioned order, or a victory of any type by the Does; rather, it was- the decision in F.R. and the Officials’ voluntary cessation of the threat of prosecution" }, { "docid": "5456483", "title": "", "text": "of convicted sex offenders to challenge the retroactive application of a Missouri statute. Id. at 1045-46. While the case was pending, a decision by the Missouri Supreme Court in a similar case caused the defendants to concede that, the plaintiffs’ position was correct. Id. at 1047. After they filed a declaration admitting that the statute did not apply retroactively, the federal district court dismissed the case as moot. Id. The plaintiffs then moved for attorney fees and costs under 42 U.S.C. § 1988(b). The district court granted the motion, awarding a portion of the requested fees and costs. Id. On appeal, the Eighth Circuit reversed the award of fees and costs on grounds that the plaintiffs were not “prevailing parties.” The court stated: The dismissal on mootness grounds in the instant ease was not the result of the Does prevailing on the merits of any of their claims. Instead, it was the product of a voluntary change adopted by the Officials’ in the face of the Missouri Supreme Court’s decision in F.R. [v. St. Charles County Sheriffs Dept., 301 S.W.3d 56 (Mo.2010) ] Under these circumstances, the Does are not entitled to prevailing party status simply because the voluntary change in conduct is recognized in an order of dismissal. Id. at 1050. In Sequa Corp. v. Cooper, 245 F.3d 1036 (8th Cir.2001), the court upheld an award of costs (not including attorney fees) to the defendants after a voluntary dismissal without prejudice. Importantly, the court voiced disagreement “with the [district] court’s conclusion that Sequa’s voluntary dismissal of the action made defendants prevailing parties.” Id. at 1037. However, the court upheld the award of costs, stating: [W]e note that Rule 54(d)(1) simply provides that ordinarily costs shall be allowed “as of course” to the prevailing party “unless the court otherwise directs.” We do not read Rule 54(d)(1) as impairing the inherent authority of a trial court to award costs incurred in defending an action prior to its volun tary dismissal by the plaintiff, even though a voluntary dismissal without prejudice means that neither party can be said to have prevailed. See" }, { "docid": "20292031", "title": "", "text": "at 836-37. “Instead, the Court held that, to be a prevailing party entitled to a statutory attorneys’ fee award, a party must obtain a judicially sanctioned material alteration of the legal relationship of the parties to the lawsuit.” N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1085 (8th Cir.2006); see Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”). We recently analyzed the “prevailing party” determination in the context of a preliminary injunction in Rogers Group, Inc. v. City of Fayetteville, Arkansas, 683 F.3d 903 (8th Cir.2012). In Rogers Group, we acknowledged, that “a preliminary injunction can in some instances carry the judicial imprimatur required by Buckhan-non to convey prevailing party status.” Id. at 909-10 (internal quotation marks omitted). To determine whether the preliminary injunction had created prevailing party status, we applied three core principles derived from the Supreme Court’s analysis in Buckhannon, and identified in Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 947 (D.C.Cir.2005). Rogers Group, 683 F.3d at 910. Those three principles are: First, in order to be a prevailing party, a claimant must show that there has been a court-ordered change in the legal relationship between the plaintiff and the defendant. (Citing Buckhannon, 532 U.S. at 604,121 S.Ct.'1835.) Second, a prevailing party is a party in whose favor a judgment is rendered, regardless of the amount of damages awarded. (Citing Buckhannon, 532 U.S. at 603,121 S.Ct. 1835.) Third, a claimant is not a prevailing party merely by virtue of having acquired a judicial pronouncement unaccompanied by judicial relief. (Citing Buckhannon, 532 U.S. at 606, 121 S.Ct. 1835.) Rogers Group, 683 F.3d at 910 (quoting Select Milk, 400 F.3d at 947). The Does contend that they should be considered prevailing parties on the basis of the district court’s October 27, 2008, order granting the Does’ request for a preliminary injunction and the district court’s October 27, 2010, order dismissing the Does’ claims as moot. 1. Preliminary Injunction The district court concluded" }, { "docid": "20292039", "title": "", "text": "resulting in dismissal, conferred prevailing party status); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1033 (9th Cir.2009) (holding that order of dismissal could not confer prevailing party status because “[a]s a matter of law and logic, the district court cannot have awarded Klamath any relief if it dismissed the case because it could not grant relief. And that is exactly what a dismissal on mootness or ripeness grounds means”). Because neither basis identified by the Does confers prevailing party status upon them, we reverse the district court’s grant of attorneys’ fees and costs to the Does under § 1988, as well as the district court’s amendment of the judgment under Rule 59 to reflect the award of attorneys’ fees and costs. Because they are not entitled to attorneys’ fees, their appeal of the district court’s reduction of fees is accordingly dismissed as moot. B. District Court’s Mootness Determination The Does contend that the district court erred in determining that their claims had been mooted and, therefore, that the Does lacked standing. Thus, they argue that the district court should not have dismissed their second amended complaint for lack of jurisdiction. We review de novo a district court’s grant of a motion to dismiss for lack of jurisdiction. Flores v. United States, 689 F.3d 894, 900 (8th Cir.2012); see also Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 739 (8th Cir.2005) (“Questions of mootness are matters of subject matter jurisdiction that we review de novo.”). “[A] federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal quotation marks omitted). “A case becomes moot if it can be said with assurance that there is no reasonable expectation that the violation will recur or if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”" }, { "docid": "8253437", "title": "", "text": "carry with it a “sufficient judicial imprimatur” to confer prevailing party status, where the stipulation does not “contain a provision expressly retaining jurisdiction to monitor compliance,” and “there is nothing in the record indicating that the District Court carefully reviewed the terms of the stipulation ... before ‘so ordering’ it.” Torres v. Walker, 356 F.3d 238, 244 (2d Cir.2004); see also Bell v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 451 F.3d 1097, 1103 (10th Cir.2006) (“[I]f a court does not incorporate a private settlement into an order, does not sign or otherwise provide writtén approval of the settlement’s terms, and does not retain jurisdiction to enforce performance of the obligations assumed by the settling parties, the settlement does not bear any of the marks of a consent decree and does not confer prevailing party status on the party whose claims have been compromised. A fee award cannot be based on an order that merely recognizes the fact of the parties’ agreement and dismisses the case because there is no longer a dispute before it.” (internal quotation marks and citations omitted)); Hess v. Astrue, No. 09-CV2516 (ENVXWP), 2010 WL 2723221, at *2 (E.D.N.Y. Apr. 2, 2010) (recommending against prevailing party status where court only “so-ordered” the dismissal itself, and not the underlying terms of the stipulation or settlement, stating that “[s]uch a fleeting whiff was not what the Court in Buckhannon had in mind as a settlement bearing judicial imprimatur”), adopted by 2010 WL 2710447 (E.D.N.Y. July 6, 2010); Choudhury v. Barnhart, No. 04-CV-142 (RJH)(AJP), 2005 WL 2592048, at *2 (S.D.N.Y. Oct. 11, 2005) (“Plaintiff offers no authority to support his claim that ‘so ordering’ a voluntary motion for dismissal altered the legal relationship between the parties such that he ‘prevailed’.... [Adopting the plaintiffs position] would mean that anytime a plaintiff filed a suit and then voluntarily dismissed it he would be entitled to attorneys’ fees, regardless of whether his suit was meritorious. For exactly this reason the Second Circuit has held that a ‘so-ordered’ stipulation of dismissal — absent a provision indicating that the dismissing court intends to retain" }, { "docid": "12393706", "title": "", "text": "Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677, 687 (9th Cir.2012). A. Prevailing party The district court determined that Plaintiffs were the prevailing party. A party is a prevailing party for purposes of an attorneys’ fee award if it “achieved a material alteration in the legal relationship of the parties that is judicially sanctioned.” Klamath Siskiyou Wildlands Ctr., 589 F.3d at 1030 (internal quotation marks omitted). “The material alteration in the legal relationship of the parties must be relief that the would-be prevailing party sought.” Id. A party need not succeed in all of its claims to be the prevailing party. San Diego Police Officers’ Ass’n v. San Diego City Emps. ’ Ret. Sys., 568 F.3d 725, 741 (9th Cir.2009). Because Plaintiffs obtained an injunction against all Defendants and disgorgement of profits from A.V.E.L.A., Jem, and Freeze, Plaintiffs obtained “a material alteration in the legal relationship of the parties that is judicially sanctioned.” See Klamath Siskiyou Wildlands Ctr., 589 F.3d at 1030. Thus, the district court did not abuse its discretion in finding Plaintiffs were the prevailing party. B. Exceptional case The district court also held that the instant action was an exceptional case within the meaning of § 1117(a) as to all Defendants. A case is considered exceptional “when the infringement is malicious, fraudulent, deliberate, or willful.” Grade, 217 F.3d at 1068 (internal quotation marks omitted). Egregious conduct is not required. TrafficSchool.com, Inc., 653 F.3d at 833. Nor is bad faith. See Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1218 (9th Cir.2003). We consider the relief obtained, see Traffic-School.com, Inc., 653 F.3d at 832, and whether the relevant area of law was unclear when the defendant’s conduct occurred, Tamko Roofing Prods., Inc. v. Ideal Roofing Co., 282 F.3d 23, 32-33 (1st Cir.2002). The district court properly considered the relevant evidence and held that Defendants had acted willfully. See id. at 31. A.V.E.L.A. Defendants argue that the uncertainty of the law makes A.V.E.L.A.’s infringement not willful. In this case, the uncertainty of the law weighs in A.V.E.L.A. Defendants’ favor, but that consideration is only one" }, { "docid": "20292030", "title": "", "text": "to this general rule applies when Congress has provided explicit statutory authority for awarding fees to a prevailing party. See id. Such a grant of authority is found in 42 U.S.C. § 1988(b), which provides that “[i]n any action or proceeding to enforce a provision of ... [§] 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs[.]” “The test for prevailing party [as] explained by [the] Supreme Court is that ‘a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” Advantage Media, 511 F.3d at 836 (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). “The Supreme Court refined this standard in Buckhannon when it rejected the ‘catalyst’ theory, ... which permitted a plaintiff to recover fees if its lawsuit achieved the desired result through a voluntary change in the defendant’s conduct.” Id. at 836-37. “Instead, the Court held that, to be a prevailing party entitled to a statutory attorneys’ fee award, a party must obtain a judicially sanctioned material alteration of the legal relationship of the parties to the lawsuit.” N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1085 (8th Cir.2006); see Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835 (“A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”). We recently analyzed the “prevailing party” determination in the context of a preliminary injunction in Rogers Group, Inc. v. City of Fayetteville, Arkansas, 683 F.3d 903 (8th Cir.2012). In Rogers Group, we acknowledged, that “a preliminary injunction can in some instances carry the judicial imprimatur required by Buckhan-non to convey prevailing party status.” Id. at 909-10 (internal quotation marks omitted). To determine whether the preliminary injunction had created prevailing party status, we applied three core principles derived from the Supreme Court’s analysis in Buckhannon, and identified in Select Milk Producers, Inc." }, { "docid": "20292036", "title": "", "text": "par ty status upon them. The Does contend that the Officials’ “admissions forced a judicial order recognizing § 589.426 cannot be applied to. Plaintiffs and, only after the admission was judicially sanctioned, Plaintiffs’ claims are, arguably, moot.” Appel-lees/Cross-Appellants’ Principal and Resp. Br. 19-20. Moreover, “[n]ow that Defendants have achieved dismissal of Plaintiffs’ case as moot based on their admissions, Defendants are bound by those admissions.” Id. at 20. The. Does, however, miss the point that underscores the Officials’ admission; it was a voluntary action taken by the Officials’ in the Does’ lawsuit. The Does implicitly acknowledge this fact later, by arguing that the decision in F.R. “certainly provided writing on the wall, ... [but it] did not prevent Defendants from fighting on in the district court or from attempting to enforce § 589.426 against Plaintiffs.” Id. at 21. What ultimately halted the Officials was not a judicially sanctioned order, or a victory of any type by the Does; rather, it was- the decision in F.R. and the Officials’ voluntary cessation of the threat of prosecution that brought about mootness. As noted above, the Supreme Court has rejected the catalyst theory in determinations of prevailing party status, and has made clear that “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. In Northern Cheyenne Tribe, we recognized that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney. N. Cheyenne Tribe, 433 F.3d at 1086 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980)). We find the Does’ attempt to create the necessary judicial imprimatur after the Officials’ voluntary" }, { "docid": "17680639", "title": "", "text": "challenged does not make the plaintiff prevailing. Even though the repeal “perhaps accomplished] what the plaintiff sought to achieve,” it merely represents the “defendant’s voluntary change in conduct,” which lacks a judicial sanction or imprimatur. Id. at 605, 121 S.Ct. 1835. In short, the judicial sanction must be an enforceable entitlement to relief. It must “allow[] one party to require the other party to do something it otherwise would not be required to do.” Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir.2008) (internal quotation marks omitted). To receive what one sought is not enough to prevail: the court must require one’s opponent to give it. All together, this case law establishes that the sine qua non of prevailing party status is an enforceable, judicially sanctioned award of much of the relief the plaintiff sought. See Better Forestry, 567 F.3d at 1131 (“[A] party must have a judgment or something similar formally delivered in its favor to be considered ‘prevailing.’ ”); Carbonell, 429 F.3d at 900. Ill Prevailing party status must always rest on a judicial sanction — typically an order of some kind — that materially alters the parties’ legal relationship. Therefore, the first question we must ask is, “what is the judicial order or sanction?” Here, the district court relied on three judicial acts to conclude that Klamath had prevailed: (1) the stipulated order staying the Willy Slide timber sale until May 15, 2006; (2) the magistrate judge’s F & R; and (3) the district court’s own dismissal of the case for lack of subject-matter jurisdiction on the basis of the BLM’s voluntary withdrawal of the sale. We take each in turn. A The stipulated order is certainly judicially enforceable: it barred the BLM from authorizing the Willy Slide timber sale until May 15, 2006. Klamath relies on Carbonell for the proposition that an enforceable stipulation can support prevailing party status. But Carbonell grants no special status to stipulations. What mattered there was that the stay saved an otherwise imminently removable immi grant from deportation. This was “much of the relief he sought.” 429 F.3d at 900." }, { "docid": "20292032", "title": "", "text": "v. Johanns, 400 F.3d 939, 947 (D.C.Cir.2005). Rogers Group, 683 F.3d at 910. Those three principles are: First, in order to be a prevailing party, a claimant must show that there has been a court-ordered change in the legal relationship between the plaintiff and the defendant. (Citing Buckhannon, 532 U.S. at 604,121 S.Ct.'1835.) Second, a prevailing party is a party in whose favor a judgment is rendered, regardless of the amount of damages awarded. (Citing Buckhannon, 532 U.S. at 603,121 S.Ct. 1835.) Third, a claimant is not a prevailing party merely by virtue of having acquired a judicial pronouncement unaccompanied by judicial relief. (Citing Buckhannon, 532 U.S. at 606, 121 S.Ct. 1835.) Rogers Group, 683 F.3d at 910 (quoting Select Milk, 400 F.3d at 947). The Does contend that they should be considered prevailing parties on the basis of the district court’s October 27, 2008, order granting the Does’ request for a preliminary injunction and the district court’s October 27, 2010, order dismissing the Does’ claims as moot. 1. Preliminary Injunction The district court concluded that the Does were prevailing parties because they “won the only ‘battle’ that was determined on the merits and would have won the war but for the doctrines of avoidance and abstention in combination with defendants’ wise retreat.” D. Ct. Order of Aug. 25, 2011, at 5-6. The Supreme Court has held that “[a] plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Sole v. Wyner, 551 U.S. 74, 78, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007). In Sole, the plaintiff sought to enjoin state park officials from enforcing an anti-nudity rule in effect for state parks. Id. at 78-79, 127 S.Ct. 2188. ' The ’ plaintiff wished to organize an antiwar artwork consisting of nude individuals assembled into a peace sign on a beach in the park. Id. at 78,127 S.Ct. 2188. The plaintiff was granted the preliminary injunction and she assembled her artwork in" }, { "docid": "5456481", "title": "", "text": "order is modified, the purpose would be solely to accomplish indirectly what the court could not do directly. III. DISCUSSION A. Are the Claimants entitled to Fees under CAFRA? CAFRA provides that in any civil proceeding to forfeit property under federal law in which the claimant substantially prevails, the United States shall be liable for reasonable attorney fees, litigation costs and interest. 28 U.S.C. § 2465(b)(1)(A)-(C). The Supreme Court has not defined “substantially prevails” within the context of CAFRA. However, in applying other statutory fee-shifting provisions, the Court has held that a party prevails when that party achieves a “judicially sanctioned change in the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (applying fee-shifting provision of the Fan-Housing Amendments Act and the Americans with Disabilities Act ). The touchstone of the inquiry is whether there is a material alteration of the parties’ legal relationship. Sole v. Wyner, 551 U.S. 74, 82, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007). The Eighth Circuit Court of Appeals has held, in an unpublished per curiam opinion, that the claimant in a forfeiture action was not a substantially prevailing party under CAFRA when the Government voluntarily dismissed that action without prejudice. United States v. Dougherty, 486 Fed.Appx. 621, 622 (8th Cir.2012). While Dougherty contains no analysis of the issue, its holding is consistent with the Eighth Circuit’s decisions in analogous contexts. The court has applied Buckhannon strictly, holding that a party is considered a prevailing party only “if it receives an enforceable judgment on the merits or a consent decree.” Christina A. v. Bloomberg, 815 F.3d 990, 993 (8th Cir.2003) (applying fee-shifting provision contained in 42 U.S.C. § 1988(b) ). The court applied this principle in Doe v. Nixon, 716 F.3d 1041 (8th Cir.2013), holding that the defendant’s voluntary change of position, which resulted in a dismissal on mootness grounds, did not convey “prevailing party” status on the plaintiffs. Id. at 1050. Doe was an injunctive relief action brought by a group" }, { "docid": "17680645", "title": "", "text": "ruling was based “upon the BLM’s commitment to undertake (or not to take) certain specific actions.” Better Forestry, however, forecloses any argument that this finding confers prevailing party status on Klamath, because it was not accompanied by any ruling that Klamath was entitled to relief. See 567 F.3d at 1132-33. Thus, the district court’s order could not itself provide enforceable relief against the BLM. The district court’s dismissal order judicially sanctions no change in the parties’ relationship because it does not and could not “allow[ ] one party to require the other party to do something it otherwise would not be required to do.” Jankey, 537 F.3d at 1130 (internal quotation omitted). Therefore, it is also insufficient to confer prevailing party status on Klamath. IV Undeterred, Klamath makes a novel argument. It reaches outside the confines of this lawsuit and claims our own decision in Boody as the source of its prevailing party status in this case. Klamath’s theory is that Boody drove the BLM to flee the field of battle because the agency knew it was “faced with imminent defeat.” In Boody, we invalidated the same Annual Species Review decisions that underlay the Willy Slide timber sale. 468 F.3d at 563. We also held that two other timber sales were unlawful because they relied on those decisions. Id. Thus, one might suspect that, had BLM not beat its hasty retreat, Kla-math would soon have prevailed on the strength of Boody. Even if Klamath is right, however, that Boody assured it of victory, that is not enough to establish prevailing party status here. As we have recently reaffirmed, “a favorable determination on a legal issue, even if it might have put the handwriting on the wall, is not enough by itself. A favorable judicial statement of law ... cannot substitute for a form of judicial relief.” Better Forestry, 567 F.3d at 1133 (internal quotation marks omitted). The district court was under the impression that Justice Scalia’s concurrence in Buckhannon (which Justice Thomas joined) changed the analysis. The court believed that Justices Scalia and Thomas, like the four dissenters who supported" }, { "docid": "13002208", "title": "", "text": "and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)) (internal quotation marks and alterations omitted). It is not enough to establish “prevailing party” status when a party has “secured [a] favorable out-of-court settlement[ ],” as the other party’s “voluntary actions ... lack the necessary judicial imprimatur.” Id. at 901 (citing Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835). Nor is it enough that a party secures a favorable ruling on mootness grounds. Id. at 902 (concluding that the hearing officer’s dismissal of the case on mootness grounds was “unaccompanied by judicial relief,” because the school district had already agreed to provide the relief sought at the hearing); but see District of Columbia v. Jeppsen, 514 F.3d 1287, 1291 (D.C.Cir.2008) (holding that the District was a “prevailing party” when one claim against it was dismissed as moot and another claim was dismissed on the merits). Rather, to establish “prevailing party” status under the Act, a party must satisfy a three-part test: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Straus, 590 F.3d at 901 (citing Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C.Cir.2003)). Furthermore, where a defendant is seeking to establish “prevailing party” status, that party need not establish a court-ordered change in the legal relationship of the parties. Id. (“Although we developed this test in connection with requests for fees by plaintiffs, we have applied its latter two requirements to requests by defendants as well.”); Jeppsen, 514 F.3d at 1290 (D.C.Cir.2008) (concluding that a defendant who obtains a dismissal on the merits qualifies as a “prevailing party,” despite there not being any court-ordered change in the legal relationship of the parties). Applying the Thomas test to the facts of this case, the Court finds that the District has sufficiently alleged that it is a “prevailing party” under the Act. Because the District was" }, { "docid": "20292038", "title": "", "text": "change unpersuasive. We pointed out in Rogers Group that this is the type of situation that does not confer prevailing party status: If the [City] had acted to moot this case through voluntary cessation before there was a judicially sanctioned change in the legal relationship of the parties, [Rogers Group] would not have been [a] “prevailing part[y].” Rogers Group, 683 F.3d at 911 (quoting Select Milk, 400 F.3d at 949 (internal quotation marks omitted)). The. dismissal on mootness grounds in the instant case was not the result of the Does prevailing on the merits of any of their claims. Instead, it was the product of a voluntary change adopted by the Officials’ in the face of the Missouri Supreme Court’s decision in F.R. Under these circumstances, the Does are not entitled to prevailing party status simply because the voluntary change in conduct is recognized in an order of dismissal. See Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 231-32 (3d Cir.2011) (en banc) (rejecting argument that the defendant’s voluntary concession which mooted plaintiffs’ claims, resulting in dismissal, conferred prevailing party status); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1033 (9th Cir.2009) (holding that order of dismissal could not confer prevailing party status because “[a]s a matter of law and logic, the district court cannot have awarded Klamath any relief if it dismissed the case because it could not grant relief. And that is exactly what a dismissal on mootness or ripeness grounds means”). Because neither basis identified by the Does confers prevailing party status upon them, we reverse the district court’s grant of attorneys’ fees and costs to the Does under § 1988, as well as the district court’s amendment of the judgment under Rule 59 to reflect the award of attorneys’ fees and costs. Because they are not entitled to attorneys’ fees, their appeal of the district court’s reduction of fees is accordingly dismissed as moot. B. District Court’s Mootness Determination The Does contend that the district court erred in determining that their claims had been mooted and, therefore, that the Does" }, { "docid": "20292037", "title": "", "text": "that brought about mootness. As noted above, the Supreme Court has rejected the catalyst theory in determinations of prevailing party status, and has made clear that “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. In Northern Cheyenne Tribe, we recognized that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney. N. Cheyenne Tribe, 433 F.3d at 1086 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980)). We find the Does’ attempt to create the necessary judicial imprimatur after the Officials’ voluntary change unpersuasive. We pointed out in Rogers Group that this is the type of situation that does not confer prevailing party status: If the [City] had acted to moot this case through voluntary cessation before there was a judicially sanctioned change in the legal relationship of the parties, [Rogers Group] would not have been [a] “prevailing part[y].” Rogers Group, 683 F.3d at 911 (quoting Select Milk, 400 F.3d at 949 (internal quotation marks omitted)). The. dismissal on mootness grounds in the instant case was not the result of the Does prevailing on the merits of any of their claims. Instead, it was the product of a voluntary change adopted by the Officials’ in the face of the Missouri Supreme Court’s decision in F.R. Under these circumstances, the Does are not entitled to prevailing party status simply because the voluntary change in conduct is recognized in an order of dismissal. See Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 231-32 (3d Cir.2011) (en banc) (rejecting argument that the defendant’s voluntary concession which mooted plaintiffs’ claims," }, { "docid": "17680643", "title": "", "text": "adopts them. See 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Fed. Prac. & Proc. Civ.2d § 3070.1 (2009) (“It is fundamental that [a magistrate judge’s] recommendations do not become an order of the court until the district judge takes some action.”). An Article III judge may accept or reject them if the parties object, and he must review de novo the portions of the recommendations to which the parties object. See 28 U.S.C. § 636(b)(1)(C); Dawson v. Marshall, 561 F.3d 930, 932-33 (9th Cir.2009). Here, the BLM objected. Regardless of what the BLM objected to, its objection means that the F & R had no legal effect until the district court reviewed it. Thus, the F & R is not a court order that Klamath can enforce by seeking contempt or any other judicial remedy. C Finally, we consider the district court’s dismissal order. The case was dismissed for lack of jurisdiction on the ground that Klamath’s claims had become either unripe or moot. Both defects indicate the absence of a constitutional claim or controversy because a court cannot grant any relief. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (noting that the ripeness requirement “protect[s] agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties” (internal quotation marks omitted)); Tur v. YouTube, Inc., 562 F.3d 1212, 1213 (9th Cir.2009) (per curiam) (“The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.”) (internal quotation marks omitted). As a matter of law and logic, the district court cannot have awarded Klamath any relief if it dismissed the case because it could not grant relief. And that is exactly what a dismissal on mootness or ripeness grounds means. Klamath argues that the district court’s dismissal order was “premised on the court’s finding that the BLM was required to undertake certain actions before issuing a new timber sale.” Indeed, the court itself explained that its" }, { "docid": "17680644", "title": "", "text": "constitutional claim or controversy because a court cannot grant any relief. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (noting that the ripeness requirement “protect[s] agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties” (internal quotation marks omitted)); Tur v. YouTube, Inc., 562 F.3d 1212, 1213 (9th Cir.2009) (per curiam) (“The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.”) (internal quotation marks omitted). As a matter of law and logic, the district court cannot have awarded Klamath any relief if it dismissed the case because it could not grant relief. And that is exactly what a dismissal on mootness or ripeness grounds means. Klamath argues that the district court’s dismissal order was “premised on the court’s finding that the BLM was required to undertake certain actions before issuing a new timber sale.” Indeed, the court itself explained that its ruling was based “upon the BLM’s commitment to undertake (or not to take) certain specific actions.” Better Forestry, however, forecloses any argument that this finding confers prevailing party status on Klamath, because it was not accompanied by any ruling that Klamath was entitled to relief. See 567 F.3d at 1132-33. Thus, the district court’s order could not itself provide enforceable relief against the BLM. The district court’s dismissal order judicially sanctions no change in the parties’ relationship because it does not and could not “allow[ ] one party to require the other party to do something it otherwise would not be required to do.” Jankey, 537 F.3d at 1130 (internal quotation omitted). Therefore, it is also insufficient to confer prevailing party status on Klamath. IV Undeterred, Klamath makes a novel argument. It reaches outside the confines of this lawsuit and claims our own decision in Boody as the source of its prevailing party status in this case. Klamath’s theory is that Boody drove the BLM to flee the field of battle because the agency knew" }, { "docid": "5456482", "title": "", "text": "S.Ct. 2188, 167 L.Ed.2d 1069 (2007). The Eighth Circuit Court of Appeals has held, in an unpublished per curiam opinion, that the claimant in a forfeiture action was not a substantially prevailing party under CAFRA when the Government voluntarily dismissed that action without prejudice. United States v. Dougherty, 486 Fed.Appx. 621, 622 (8th Cir.2012). While Dougherty contains no analysis of the issue, its holding is consistent with the Eighth Circuit’s decisions in analogous contexts. The court has applied Buckhannon strictly, holding that a party is considered a prevailing party only “if it receives an enforceable judgment on the merits or a consent decree.” Christina A. v. Bloomberg, 815 F.3d 990, 993 (8th Cir.2003) (applying fee-shifting provision contained in 42 U.S.C. § 1988(b) ). The court applied this principle in Doe v. Nixon, 716 F.3d 1041 (8th Cir.2013), holding that the defendant’s voluntary change of position, which resulted in a dismissal on mootness grounds, did not convey “prevailing party” status on the plaintiffs. Id. at 1050. Doe was an injunctive relief action brought by a group of convicted sex offenders to challenge the retroactive application of a Missouri statute. Id. at 1045-46. While the case was pending, a decision by the Missouri Supreme Court in a similar case caused the defendants to concede that, the plaintiffs’ position was correct. Id. at 1047. After they filed a declaration admitting that the statute did not apply retroactively, the federal district court dismissed the case as moot. Id. The plaintiffs then moved for attorney fees and costs under 42 U.S.C. § 1988(b). The district court granted the motion, awarding a portion of the requested fees and costs. Id. On appeal, the Eighth Circuit reversed the award of fees and costs on grounds that the plaintiffs were not “prevailing parties.” The court stated: The dismissal on mootness grounds in the instant ease was not the result of the Does prevailing on the merits of any of their claims. Instead, it was the product of a voluntary change adopted by the Officials’ in the face of the Missouri Supreme Court’s decision in F.R. [v. St. Charles" }, { "docid": "20292034", "title": "", "text": "the park as planned. Id. at 79-80, 127 S.Ct. 2188. Thereafter, the plaintiff sought a permanent injunction, but the district court granted the state park officials’ motion for summary judgment on the merits'. Id. at 80, 127 S.Ct. 2188. Nevertheless, the district court concluded that the plaintiff was a prevailing party because she had oN tained a preliminary injunction that actually prohibited the police from interfering with the nude artwork. Id. at 81, 127 S.Ct. 2188. The Supreme Court disagreed, holding that “[pjrevailing party status ... does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” Id. at 83, 127 S.Ct. 2188. The Does achieved an even less significant victory with their preliminary injunction than did the plaintiff in Sole. Although when granted the preliminary injunction prohibited the enforcement of the Halloween statute on October 31, 2008, it was stayed before it had any effect. In effect then, the stay of the preliminary injunction, which expired of its own terms on November 1, 2008, resulted in the Does leaving the courthouse emptyhanded, their initial success having been undone without a change in the parties’ legal relationship. We conclude that this is the type of transient victory that the Supreme Court has indicated is not entitled to an award under a fee-shifting provision; See Sole, 551 U.S. at 78, 127 S.Ct. 2188. As we have noted, “a claimant is not a prevailing party merely by virtue of having acquired a judicial pronouncement unaccompanied by judicial relief.” Rogers Group, 683 F.3d at 910 (internal quotation marks omitted). Although the district court’s order granting the preliminary, injunction may have served as a court-ordered change in the parties’ legal relationship, this change was never realized because of our stay of that order. Thus, the district court’s October 27, 2008, order effectively served as a judicial pronouncement without judicial relief and did not confer prevailing party status upon the Does. 2. Dismissal on Mootness Grounds The Does argue next that the district court’s order dismissing their case on mootness grounds confers prevailing" }, { "docid": "12393705", "title": "", "text": "cursorily explain how putative sales abroad might fall within the Lanham Act’s coverage under Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500 (9th Cir.1991). We will not manufacture arguments on their behalf or pick through the record without further direction. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994). Nor do we find compelling the evidence Plaintiffs cited to show that Defendants concealed some of their profits. Given the district court’s “wide scope of discretion ... in ... fashioning ... a remedy,” Faberge, Inc. v. Saxony Prods., Inc., 605 F.2d 426, 429 (9th Cir.1979) (internal quotation marks omitted), it did not err by denying Plaintiffs an increased award of profits. III. The district court did not err in ordering A.V.E.L.A. Defendants to pay attorneys’ fees. “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). We review an attorneys’ fee award for abuse of discretion, except that “the district court’s legal determination that an action is ‘exceptional’ under the Lanham Act” we review de novo. Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677, 687 (9th Cir.2012). A. Prevailing party The district court determined that Plaintiffs were the prevailing party. A party is a prevailing party for purposes of an attorneys’ fee award if it “achieved a material alteration in the legal relationship of the parties that is judicially sanctioned.” Klamath Siskiyou Wildlands Ctr., 589 F.3d at 1030 (internal quotation marks omitted). “The material alteration in the legal relationship of the parties must be relief that the would-be prevailing party sought.” Id. A party need not succeed in all of its claims to be the prevailing party. San Diego Police Officers’ Ass’n v. San Diego City Emps. ’ Ret. Sys., 568 F.3d 725, 741 (9th Cir.2009). Because Plaintiffs obtained an injunction against all Defendants and disgorgement of profits from A.V.E.L.A., Jem, and Freeze, Plaintiffs obtained “a material alteration in the legal relationship of the parties that is judicially sanctioned.” See Klamath Siskiyou Wildlands Ctr., 589 F.3d at 1030. Thus, the district court did not abuse its discretion in" } ]

[ { "docid": "22075650", "title": "", "text": "were within the expertise of the jury and therefore the probative value of the evidence was substantially outweighed by the possibility of prejudice emanating from this “expert” testimony. Appellants claim this ruling was error. Rule 702, Fed.R.Evid., permits expert testimony when the trial court determines that “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. . . . ” As with all evidentiary rulings, the admission of such testimony is addressed to the sound discretion of the trial court. United States v. Lopez, 543 F.2d 1156 (5th Cir. 1976). We find no abuse of discretion in the trial court’s ruling. Buckhout did not comment specifically on the identification made by the two government witnesses, but instead testified generally as to problems with eyewitness identification and that pilots as a group were not better equipped than ordinary witnesses to make identifications. To admit such testimony in effect would permit the proponent’s witness to comment on the weight and credibility of opponents’ witnesses and open the door to a barrage of marginally relevant psychological evidence. Moreover, we conclude, as did the trial judge, that the problems of perception and memory can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation. Our conclusion is supported by other circuits’ uniform approval of excluding testimony exactly like Buckhout’s. United States v. Fosher, 590 F.2d 381, 382-84 (1st Cir. 1979) (Buckhout’s specific testimony excluded); United States v. Watson, 587 F.2d 365, 368-69 (7th Cir. 1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979); United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir. 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977); United States v. Brown, 501 F.2d 146 (9th Cir. 1974), rev’d on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (Buckhout’s specific testimony excluded); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1973); United States v. Collins, 395 F.Supp. 629 (M.D.Pa.), aff’d," } ]

[ { "docid": "1779201", "title": "", "text": "Smithers weighed 245 pounds in November of 1996, is 6’ 8” tall and has a four-inch long scar on the right front side of his neck. The case was submitted to the jury on January 21, 1998. The next day, the jury returned a verdict of guilty. The district court sentenced Smithers on June 4, 1998, to a forty-one month term of imprisonment. Smithers timely filed a notice of appeal on June 8, 1998. Smithers now appeals various aspects of his trial, only one of which we address today: the exclusion of Dr. Fulero as an eyewitness expert. II. Generally, a trial court’s evidentiary determinations are reviewed for an abuse of discretion. See United States v. Moore, 954 F.2d 379, 381 (6th Cir.1992). Smithers argues that the district court’s denial of his motion to introduce testimony by an identification expert warrants the reversal of his conviction. The crucial element of the government’s case was eyewitness identification of the defendant and his car, Smithers argues, and Dr. Fulero’s testimony involved a proper subject that would have been helpful to the jury in evaluating this issue. Smithers, therefore, contends that the decision to exclude this expert’s testimony, to indulge the district judge in his rather eccentric courtroom experiment, was improper. The government counters that the district court’s decision was well within its discretion. The district court properly excluded Dr. Fulero’s testimony, the prosecution argues, based upon its lack of scientific validity, invasion of the jury’s province, possibility of confusion and the tardiness of Smithers’s proffer. Courts’ treatments of expert testimony regarding eyewitness identification has experienced a dramatic transformation in the past twenty years and is still in a state of flux. Beginning in the early 1970’s, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly skeptical about admitting such testimony, elaborating a host of reasons why eyewitness experts should not be allowed to testify. In the first case to address the issue, United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), the Ninth Circuit held that the district court did not err in excluding expert testimony regarding" }, { "docid": "12080850", "title": "", "text": "246 (C.M.A.1987) (applying Mil.R.Evid. 702), or federal trials. Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (applying Fed.R.Evid. 702); United States v. Almador-Galvan, 9 F.3d 1414, 1418 (9th Cir.1993) (applying Daubert in rejecting Amaral test). Instead, general acceptance is merely a factor to be considered in weighing whether expert testimony is both relevant and reliable enough for admission. Daubert, — U.S. at -, 113 S.Ct. at 2795; Gipson, 24 M.J. at 251. Before Daubert, the federal circuits split on whether to admit expert testimony offered by the defense to attack the reliability of an eyewitness identification. The circuits that excluded it determined the testimony (1) did not meet the Frye standard of general acceptance, (2) invaded the province of the jury to determine credibility of witnesses, (3) was not helpful because jurors could use their common sense and experience to determine reliability of eyewitness testimony, (4) was only offered in general terms without tying the expert opinion to the facts of the case, or (5) would confuse the jury as eyewitness identification was not a central issue in the case. For a discussion of the various circuit positions, see United States v. Hudson, 884 F.2d 1016 (7th Cir.1989) (excluding), cert. denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990) and United States v. Moore, 786 F.2d 1308 (5th Cir.1986) (admitting), reh’g denied, 791 F.2d 928 (5th Cir. 1986) (en banc). In our view, the modern trend is to admit expert testimony on the impact psychological factors such as stress, suggestibility, feedback, and confidence have on the reliability of an eyewitness identification when the identification is a critical issue in the case. Moreover, in military trials, judges should “view liberally the question of whether the expert’s testimony may assist the trier of fact.” United States v. Combs, 35 M.J. 820, 826 (A.F.C.M.R.1992) (citations omitted). And, “[i]f anything, in marginal cases, due process might make the road a tad wider on the defense’s side than on the Government’s.” Gipson 24 M.J. at 252; see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct." }, { "docid": "12073350", "title": "", "text": "the probative value of the lay opinion testimony against its potential for prejudice. Rule 403 of the Federal Rules of Evidence provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...” Fed.R. Evid. 403. We conclude that, given the familiarity both Lankford and Wood had with Langford, their testimony was sufficiently probative to outweigh the danger of unfair prejudice. The district court thus did not abuse its discretion in this respect. Upon Langford’s ex parte application, the trial court appointed an expert in the field of eyewitness identification to assist in preparation of Langford’s defense. Such an appointment requires a finding that the services of the expert “are neces- ' sary for an adequate defense.” 18 U.S.C. § 3006A(e)(l). Nevertheless, at trial the court excluded the expert’s testimony concerning the unreliability of eyewitness identification: I rather think in all of these situations it is a balancing question. The ruling of the court (excluding the proffered testimony) is in no way predicated upon the absence of qualifications of the witness who has been identified in his professional field of psychology. The ruling, including the use of his testimony as an expert, is that it goes beyond the field of expertise to which such testimony should be directed or can be directed, and is basically argumentative and intrusive upon the jury’s responsibility as triers of the facts of the case. Even if the admission of expert testimony concerning eyewitness identification is proper under certain circumstances, “there is no federal authority for the proposition that such testimony must be admitted.” United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986). We have repeatedly upheld the exclusion of such testimony. See United States v. Brewer, 783 F.2d 841, 842 (9th Cir.1986); United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). It was within the broad discretion of the trial court to conclude that, on balance, the jury would not benefit from admission of the proffered evidence. See United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir. 1985) (quoting United States" }, { "docid": "20138542", "title": "", "text": "Telford and Patterson’s eyewitness identification is thus an essential issue in this case, favoring the admission of expert testimony on eyewitness identification. See United States v. Brownlee, 454 F.3d 131, 141 (3d Cir.2006) (remanding for new trial because exclusion of identification expert significantly undermined defendant’s ability to challenge witnesses’ confidence in their identifications in a case turning primarily on accuracy of identifications); United States v. Smithers, 212 F.3d 306, 317 (6th Cir.2000) (“[Ejxpert testimony should be admitted ... when there is no other inculpatory evidence presented against the Defendant with the exception of a small number of eyewitness identifications.”); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (“[Ijn a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged.”). Penrod’s proffered testimony, however, appears to be of limited helpfulness because it does not address directly the particular facts of this case. “[E]xpert testimony must be relevant not only in the sense that all evidence must be relevant, but also in the incremental sense that the expert’s proposed opinion, if admitted likely would assist the trier of fact to understand or determine a fact in issue.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.1998). Indeed, Rule 702 requires that an expert witness “appl[yj the [scientific] principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. Here, Penrod has never spoken with Telford or Patterson, and thus his testimony consists of generalized notions regarding the flaws of eyewitness testimony. Contra United States v. Hines, 55 F.Supp.2d 62, 73 (D.Mass.1999) (Gertner, J.) (holding expert eyewitness testimony admissible because “the fact that the expert has not interviewed the particular eyewitness makes it less likely that the jury will merely accept the expert testimony and more likely that the testimony will be appropriately cabined” and the “witness can only be providing the jury with tools to analyze the eyewitness; he has no more specific information”). Moreover, the psychological studies which form the basis of Penrod’s testimony do not appear to" }, { "docid": "22399926", "title": "", "text": "expert evidence, and its action will be sustained unless manifestly erroneous); Knight v. Otis Elevator Company, 596 F.2d 84, 87 (3d Cir.1979) (noting the liberal policy of admitting expert testimony which will “probably aid” the trier of fact). Notwithstanding the fact that the Rule 702 standard usually favors admissibility, see In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 279 (3d Cir.1983), several courts of appeals have upheld the exclusion of expert testimony on eyewitness perception and memory because the testimony would involve questions that “can be adequately addressed in cross examination and that the jury can adequately weigh ... through common-sense evaluation.” United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982). See also United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979) (offer of testimony focusing on general problems of eyewitness identifica tion was not “sufficiently beyond the ken of lay jurors to satisfy Rule 702”); United States v. Brown, 540 F.2d 1048, 1054 (10th Cir.1976) (testimony properly refused because it “usurps the functions of the jury,” and because the offer of proof was inadequate); United States v. Amaral, 488 F.2d 1148,1153 (9th Cir.1973) (cross-examination will be adequate to reveal any frailties in eyewitness identifications). We have serious doubts about whether the conclusion reached by these courts is consistent with the liberal standard of admissibility mandated by Rule 702. Instead, we find persuasive more recent cases in which courts have found that, under certain circumstances, this type of expert testimony can satisfy the helpfulness test of Rule 702. For example, in State v. Chappie, 135 Ariz. 281, 660 P.2d 1208 (1983) (applying Arizona’s version of the Federal Rules of Evidence), the Supreme Court of Arizona set aside a jury’s guilty verdict and ordered a new trial on the ground that the trial court had erroneously excluded an expert on eyewitness identification offered by the defendant. In addressing the question whether the expert’s testimony would have been “helpful” to the jury in reaching an informed decision, the court noted several specific factual “variables” that were present in that case which, the defendant’s expert was prepared to testify," }, { "docid": "1779231", "title": "", "text": "my view, erroneous. A brief overview of the appellate courts’ reception of expert testimony on the fallibility of eyewitness identifications is necessary in order to explain the inadequacy of Smithers’s initial motion. The majority correctly observes that for approximately the first decade or so in which such testimony was submitted, courts were “uniformly skeptical ... for a host of reasons.” These reasons included distrust of the science behind the testimony, a concern that the majority goes to considerable lengths to dispel. But this was hardly the only reason given for disallowing the testimony, and that skepticism rightly continues in the appellate courts today. The majority opinion in this case acknowledges some of these decisions, but sidesteps the unanimous hesitancy among appellate courts to open the door too far to this testimony. In many cases, the excluded testimony is either a generic, scholarly exploration of psychological theory, bearing little relation to the facts of the particular case, see, e.g., United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995); United States v. Rincon, 28 F.3d 921, 925 (9th Cir.1994); Jordan v. Ducharme, 983 F.2d 933, 939 (9th Cir. 1993); United States v. Blade, 811 F.2d 461, 464-65 (8th Cir.1987); United States v. Posher, 590 F.2d 381, 382-83 (1st Cir.1979), or else so specifically directed at the validity of a particular witness’s testimony as to usurp the jury’s role in determining credibility, see, e.g., United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999); United States v. Hall, 165 F.3d 1095, 1107 (7th Cir.1999); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996); United States v. Dorsey, 45 F.3d 809, 812 (4th Cir.1995); United States v. Moore, 786 F.2d 1308, 1311-12 (5th Cir.1986); United States v. Langford, 802 F.2d 1176, 1179 (9th Cir.1986); State v. Gaines, 260 Kan. 752, 926 P.2d 641, 645 (1996); State v. Sabetta, 680 A.2d 927, 933 (R.I.1996). In either situation, even though the testimony may have provided some measure of insight that the jury otherwise would not have possessed, the risk of the jury’s being unduly swayed by testimony with the imprimatur of scientific expertise has" }, { "docid": "12073362", "title": "", "text": "Testimony 9 (1979) (eyewitness identification is “overwhelmingly influential”); P. Wall, Eye-Witness Identification in Criminal Cases 19 (1965) (“[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers.”). Expert testimony on this issue is important because it reveals the reasons why a witness may truthfully, but mistakenly, believe that the defendant was the culprit. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986); I. Horowitz & T. Willing, The Psychology of Law: Integrations and Applications 238-41 (1984). We can no longer believe that jurors come to the courtroom already equipped with such knowledge. See United States v. Downing, 753 F.2d 1224, 1230-31 (3d Cir.1985) (factors regarding reliability are “beyond what an average juror might know as a matter of common knowledge and indeed some of them directly contradict ‘common sense’ ”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.), cert. denied, 469 U.S. 868,105 S.Ct. 213, 83 L.Ed.2d 143 (1984). The key to the Amaral holding is that panel’s conclusion this information may be obtained by cross-examination. However, cross-examination cannot uncover the reasons for misidentification because the witness honestly does not believe he or she has misidentified the defendant. See Downing, 753 F.2d at 1230 n. 6 (“To the extent that a mistaken witness may retain great confidence in an inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness’ recollection of an event.”). Moreover, a witness is unqualified to testify about the theories surrounding perception, retention, and recall. Only one trained in psychology or science could testify about such theories. Finally, even with such cross-examination, juries are unduly influenced by eyewitness testimony. See Rahaim & Brodsky, Empirical Evidence versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 7 Law & Psychology Rev. 1, 7 (1982). For these reasons, I believe that we cannot uphold exclusion of expert testimony based solely on the reasons set forth in Amaral. The issue then becomes: Should the evidence be excluded on other grounds? III. Although most circuit court decisions have upheld district courts’ exclusion of such" }, { "docid": "12073361", "title": "", "text": "prejudicial, it prevents the eyewitness testimony from having an overly prejudicial effect. Courts and scholars have long recognized the untrustworthiness of eyewitness testimony. E.g., Watkins v. Sowders, 449 U.S. 341, 350, 101 S.Ct. 654, 659-60, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting) (“eyewitness identification evidence is notoriously unreliable”); United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”); Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (“Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness [are] highly suspect.”); E. Borchard, Convicting the Innocent: Errors of Criminal Justice (3d ed. 1970). The problem is compounded because juries almost unquestioningly accept eyewitness testimony. See, e.g., Watkins, 449 U.S. at 352, 101 S.Ct. at 660-61 (Brennan, J., dissenting) (“[D]espite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries.”); E. Loftus, Eyewitness Testimony 9 (1979) (eyewitness identification is “overwhelmingly influential”); P. Wall, Eye-Witness Identification in Criminal Cases 19 (1965) (“[J]uries are unduly receptive to identification evidence and are not sufficiently aware of its dangers.”). Expert testimony on this issue is important because it reveals the reasons why a witness may truthfully, but mistakenly, believe that the defendant was the culprit. See United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986); I. Horowitz & T. Willing, The Psychology of Law: Integrations and Applications 238-41 (1984). We can no longer believe that jurors come to the courtroom already equipped with such knowledge. See United States v. Downing, 753 F.2d 1224, 1230-31 (3d Cir.1985) (factors regarding reliability are “beyond what an average juror might know as a matter of common knowledge and indeed some of them directly contradict ‘common sense’ ”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.), cert. denied, 469 U.S. 868,105 S.Ct. 213, 83 L.Ed.2d 143 (1984). The key to the Amaral holding is that panel’s conclusion this information may be obtained by cross-examination." }, { "docid": "12073358", "title": "", "text": "cross-racial factors affect an eyewitness’s ability to identify an individual. II. The facts of this case directly force us to evaluate the continuing vitality of Ninth Circuit precedent in light of thirteen years of scientific development in the field of human perception, retention, and recall, and recent Supreme Court and other circuits’ case law. In 1973, when scientific work with eyewitness identification was developing, we upheld a district court’s decision to exclude expert testimony regarding eyewitness reliability. We determined whether the district court abused its discretion to exclude the expert testimony by evaluating four factors: “1. qualified expert; 2. proper subject; 3. conformity to a generally accepted explanatory theory; and 4. probative value compared to prejudicial effect.” United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). Despite the multitiered framework it established, Amaral addressed only the second factor: whether the testimony was a “proper subject” at that time. We described the test for admitting expert testimony as “whether the jury can receive ‘appreciable help from such testimony.’ ” Id. at 1152. We held that the district court did not abuse its discretion only because the expert’s testimony was no more “helpful” to a jury than effective cross-examination. Id. at 1153. In the ensuing thirteen years, however, the scientific community has produced a significant amount of information demonstrating the value of expert testimony about eyewitness unreliability. The majority in this case, as with every Ninth Circuit case since Amaral, affirms a district court’s decision excluding such expert testimony with little or no discussion of the issues involved or the growing body of scientific and psychological information available. See United States v. Poole, 794 F.2d 462, 468-69 (9th Cir.1986); United States v. Brewer, 783 F.2d 841, 843 (9th Cir.1986); United States v. Smith, 563 F.2d 1361,1363 (9th Cir.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769 (1978); United States v. Brown, 501 F.2d 146, 150-51 (9th Cir.1974), rev’d on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also United States v. Sims, 617 F.2d 1371, 1375 (9th" }, { "docid": "1779203", "title": "", "text": "eyewitness identification because cross-examination was sufficient to reveal any weaknesses in the identifications. After that decision, a series of cases rejected similar evidence for a variety of reasons. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (finding no general acceptance in scientific community); United States v. Posher, 590 F.2d 381, 383 (1st Cir.1979) (ruling that the testimony would be prejudicial). This trend shifted with a series of decisions in the 1980’s, with the emerging view that expert testimony may be offered, in certain circumstances, on the subject of the psychological factors which influence the memory process. See, e.g., United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (finding that “[i]n a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged ... ”); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir.1985) (reasoning that “expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances”); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984) (“The day may have arrived, therefore, when Dr. Fulero’s testimony can be said to conform to a generally accepted explanatory theory.”). State court decisions also reflect this trend. See, e.g., State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986) (overruling per se rule and holding expert testimony admissible to inform jury about factors generally affecting memory process). Indeed, several courts have held that it is an abuse of discretion to exclude such expert testimony. See, e.g., United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir.1991) (reversing and remanding for new trial); Smith, 736 F.2d at 1107 (holding error harmless in light of other inculpatory evidence); Downing, 753 F.2d at 1232 (holding error harmless in light of other inculpatory evidence); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (reversing" }, { "docid": "1488528", "title": "", "text": "last bus home at 11:00 p.m. Chris-tophe’s main defense was that the eyewitnesses misidentified him. I. EXPERT TESTIMONY ON EYEWITNESS IDENTIFICATION Christophe filed an ex parte application for the appointment of an expert on eyewitness identification. The district court denied Christophe’s request. Christophe now claims the court committed reversible error in excluding this expert testimony. Standard of Review On review, we reverse only if the district court abused its wide discretion or committed manifest error in excluding expert testimony. United States v. Marabelles, 724 F.2d 1374, 1381 (9th Cir.1984). Moreover, the defendant must show, by clear and convincing evidence, the “prejudice ... caused by the court’s failure to appoint an expert.” United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (citations omitted). Discussion Fed.R.Evid. 702 sets the standard for the admissibility of expert testimony. Such testimony is admissible “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” The main inquiry is whether the jury will receive “appreciable help” from expert testimony. Amaral, 488 F.2d at 1152 (citations omitted). No federal authority requires the admission of testimony on the unreliability of eyewitnesses. United States v. Langford, 802 F.2d 1176, 1179 (9th Cir.1986) (quoting United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986)), cert. denied, — U.S. —, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987). We have repeatedly upheld the exclusion of such testimony. See Langford, 802 F.2d at 1180; United States v. Brewer, 783 F.2d 841, 843 (9th Cir.), cert. denied, — U.S. —, 107 S.Ct. 118, 93 L.Ed.2d 64 (1986); Amaral, 488 F.2d at 1153. In Amaral, we set forth four criteria to determine the helpfulness of expert testimony: (1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect. Id. at 1153. A jury will not be helped unless the witness is an expert in the field. See Fineberg v. United States, 393 F.2d 417, 421 (9th Cir.1968) (a witness must have such knowledge or experience so as to aid the" }, { "docid": "11448185", "title": "", "text": "which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” United States v. Bass, 477 F.2d 723, 725 (9th Cir.1973) (citing United States v. Theriault, 440 F.2d 713, 716-17 (5th Cir.1971) (Wisdom, J., concurring), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973)). In addition, the defendant must show, by clear and convincing evidence, “the prejudice ... caused by the court’s failure to appoint an expert.” United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980). We have observed that cross-examination should be effective to expose any inconsistencies or deficiencies in eyewitness identifications. United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). Brewer has not shown that “his cross-examination of the eyewitnessfes] was any less effective without the services of the expert.” Sims, 617 F.2d at 1375. Consequently, Brewer has not met his burden of showing actual prejudice caused by the failure to appoint his expert. In light of this conclusion, we do not consider whether a reasonable attorney, under the circumstances, would have retained this expert. Brewer also contends that the court abused its discretion in excluding Dr. Shomer’s proffered testimony. The trial court reasoned that the proffered testimony was not “needed in the case” because the jury could determine from observing the witnesses and from hearing their testimony on direct and cross-examination whether or not the witnesses were accurate in their perceptions of the robber. Fed.R. Evid. 702. The trial court’s ruling is squarely supported by our decision in Amaral, 488 F.2d at 1152-54, where we upheld the exclusion of similar testimony. Brewer has not shown, however, that this testimony was essential to expose any defects in the particular identifications. We conclude that the district court did not abuse its discretion in excluding this testimony. 3. Jury Misconduct Brewer next contends that the court should have declared a mistrial because the jury used a magnifying glass, without court approval, to examine the photographic evidence. He argues that the magnifying glass was not admitted into evidence and that the jury’s consideration of this “extrinsic evidence”" }, { "docid": "23483815", "title": "", "text": "explored the admissibility of expert testimony on the reliability of eyewitness identifications most recently in United States v. Smith, 156 F.3d 1046, 1052 (10th Cir.1998). We rejected a per se rule excluding such expert testimony, noting the emerging debate over this type of evidence: “Until fairly recently, most, if not all, courts excluded expert psychological testimony on the validity of eyewitness identification. But, there has been a trend in recent years to allow such testimony under circumstances described as ‘narrow.’ ” Id. at 1052-53 (quoting United States v. Harris, 995 F.2d 532, 534 (4th Cir.1993)). We listed some of the limited conditions under which this expert testimony could be appropriately admitted, emphasizing that the particular facts of a case drive the analysis: “The narrow circumstances held sufficient to support the introduction of expert testimony have varied but have included such problems as cross-racial identification, identification after a long delay, identification after observation under stress, and [such] psychological phenomena as the feedback factor and unconscious transference.” Id. at 1053 (quoting Harris, 995 F.2d at 535). In short, subject to the trial court’s careful supervision, properly conceived expert testimony may be admissible to challenge or support eyewitness evidence. The majority of other circuits also reject per se exclusion of this type of expert testimony. See United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995); United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999); United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir.1991); United States v. Harris, 995 F.2d 532, 534-35 (4th Cir.1993); United States v. Moore, 786 F.2d 1308, 1312-13 (5th Cir.1986); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); United States v. Hall, 165 F.3d 1095, 1106-07 (7th Cir.1999); United States v. Blade, 811 F.2d 461, 465 (8th Cir.1987); United States v. Rincon, 28 F.3d 921, 926 (9th Cir.1994). But see United States v. Smith, 122 F.3d 1355, 1357-59 (11th Cir.1997) (reaffirming earli er precedent creating a per se rule of inadmissibility). The rejection by these courts, as well as our own, of a per se approach to expert testimony on eyewitness identification reflects Daubert’s liberal" }, { "docid": "16791606", "title": "", "text": "police officers have no greater accuracy than laypersons in making identifications. In the first trial Dr. Timm had been permitted to testify. However, in the second trial, after reading Dr. Timm’s testimony in the first trial and receiving an offer of proof describing additional matters as to which he would testify, the court granted the government’s motion in limine to exclude Dr. Timm’s testimony. In excluding the expert testimony, the court referred to our analysis in Purham v. United States, 725 F.2d 450 (8th Cir. 1984). In Purham, we held that the district court acted within its discretion in denying an indigent defendant’s request for the services of a criminologist to testify on the inherent inaccuracies of eyewitness identification. Id. at 454. We stated that the expert witness would not have assisted the jury in evaluating the witness’ perception and identification, and admitting the testimony might have resulted in unfair prejudice because “the aura of reliability and trustworthiness that surrounds scientific evidence outweighed any small aid the expert testimony might have provided.” Id. (citing United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979)). After allowing defense counsel to make an elaborate offer of proof as to the nature of Dr. Timm’s testimony, the district court opined that any deficiencies in the police officers’ identification of Blade as the driver of the car could be more suitably addressed during cross-examination in which defense counsel could bring out the relevant circumstances, such as the amount of time to observe and the available lighting, that might effect the witness’ ability to make an accurate identification. The court also considered the abstract, general nature of Dr. Timm’s proffered testimony, that Dr. Timm had not had any contact with the witnesses or with Blade, and that his only knowledge of the events came from reading the police report and from discussing the case with defense counsel. The court ultimately concluded that the probative value of Dr. Timm’s expert testimony was substantially outweighed by the danger that the jury would attach too much weight to it because of its aura of special reliability. See Fed.R.Evid." }, { "docid": "1939814", "title": "", "text": "expect. But helpfulness is a matter of degree, and expert evidence involves costs and risks — too obvious to need recounting — that distinguish it from lay evidence about “what happened here.” Daubert itself, recalibrating the longstanding threshold requirement that the trial judge find expert evidence to be reliable, is but one facet of the difference in treatment. Indeed, trial judges have traditionally been afforded wide discretion to admit or exclude expert evidence. E.g., Handing v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590 (1974). But discretion is not carte blanche and, in some areas, prior law has been modified by the Federal Rules of Evidence. In all events, for a range of reasons, trial courts have long hesitated to admit expert evidence purporting to identify flaws in eyewitness identification: for example, courts have said that the jury could decide the credibility issues itself; that experts in this area are not much help and largely offer rather obvious generalities; that trials would be prolonged by battles of experts; and that such testimony created undue opportunity for confusing and misleading the jury. Appeals courts have generally upheld rulings excluding such evidence. E.g., United States v. Fosher, 590 F.2d 381, 382 (1st Cir.1979); United States v. Purham, 725 F.2d 450 (8th Cir.1984). Quite recently, several circuits have suggested that such evidence warrants a more hospitable reception. E.g., United States v. Rincon, 28 F.3d 921 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 605, 130 L.Ed.2d 516 (1994); United States v. Stevens, 935 F.2d 1380 (3rd Cir.1991). There is more expert literature on the subject, more experts pressing to testify, and possibly more skepticism about the reliábility of eyewitnesses. E.g., Loftus and Doyle, Eyewitness Testimony: Civil and Criminal (2d ed. 1992). It may be that a door once largely shut is now somewhat ajar.\" We are unwilling to adopt a blanket rule that qualified expert testimony on eyewitness identification must routinely be admitted or excluded. Our Fosher decision is not a general bar to such testimony; that case upheld an exclusion as within “the broad discretion allowed" }, { "docid": "1779202", "title": "", "text": "been helpful to the jury in evaluating this issue. Smithers, therefore, contends that the decision to exclude this expert’s testimony, to indulge the district judge in his rather eccentric courtroom experiment, was improper. The government counters that the district court’s decision was well within its discretion. The district court properly excluded Dr. Fulero’s testimony, the prosecution argues, based upon its lack of scientific validity, invasion of the jury’s province, possibility of confusion and the tardiness of Smithers’s proffer. Courts’ treatments of expert testimony regarding eyewitness identification has experienced a dramatic transformation in the past twenty years and is still in a state of flux. Beginning in the early 1970’s, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly skeptical about admitting such testimony, elaborating a host of reasons why eyewitness experts should not be allowed to testify. In the first case to address the issue, United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), the Ninth Circuit held that the district court did not err in excluding expert testimony regarding eyewitness identification because cross-examination was sufficient to reveal any weaknesses in the identifications. After that decision, a series of cases rejected similar evidence for a variety of reasons. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir.1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (finding no general acceptance in scientific community); United States v. Posher, 590 F.2d 381, 383 (1st Cir.1979) (ruling that the testimony would be prejudicial). This trend shifted with a series of decisions in the 1980’s, with the emerging view that expert testimony may be offered, in certain circumstances, on the subject of the psychological factors which influence the memory process. See, e.g., United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (finding that “[i]n a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly" }, { "docid": "1939815", "title": "", "text": "such testimony created undue opportunity for confusing and misleading the jury. Appeals courts have generally upheld rulings excluding such evidence. E.g., United States v. Fosher, 590 F.2d 381, 382 (1st Cir.1979); United States v. Purham, 725 F.2d 450 (8th Cir.1984). Quite recently, several circuits have suggested that such evidence warrants a more hospitable reception. E.g., United States v. Rincon, 28 F.3d 921 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 605, 130 L.Ed.2d 516 (1994); United States v. Stevens, 935 F.2d 1380 (3rd Cir.1991). There is more expert literature on the subject, more experts pressing to testify, and possibly more skepticism about the reliábility of eyewitnesses. E.g., Loftus and Doyle, Eyewitness Testimony: Civil and Criminal (2d ed. 1992). It may be that a door once largely shut is now somewhat ajar.\" We are unwilling to adopt a blanket rule that qualified expert testimony on eyewitness identification must routinely be admitted or excluded. Our Fosher decision is not a general bar to such testimony; that case upheld an exclusion as within “the broad discretion allowed a trial court.” 590 F.2d at 382. But trial courts are likely to educate themselves, and us, by taking these proffers one by one. Obvious concerns are the reliability and helpfulness of the proposed expert testimony, the importance and the quality of the eyewitness evidence it addresses, and any threat of confusion, misleading of the jury, or unnecessary delay. In this case, we sustain the district court’s ruling on the ground that the district judge made clear his need for some proffer of data or literature underlying the expert’s assumptions and conclusions, and the defense offered practically nothing, despite repeated opportunities to do so. In our view, this procedure was justified both in order to determine reliability under Daubert and to allow the judge to gauge whether the testimony would be helpful to the jury or would confuse or mislead instead. Nor is there any reason offered why Yarmey could not have supplied this foundation. Brien argues that the expert literature casting doubt on eyewitness evidence is now so well established that the courts should" }, { "docid": "12073359", "title": "", "text": "the district court did not abuse its discretion only because the expert’s testimony was no more “helpful” to a jury than effective cross-examination. Id. at 1153. In the ensuing thirteen years, however, the scientific community has produced a significant amount of information demonstrating the value of expert testimony about eyewitness unreliability. The majority in this case, as with every Ninth Circuit case since Amaral, affirms a district court’s decision excluding such expert testimony with little or no discussion of the issues involved or the growing body of scientific and psychological information available. See United States v. Poole, 794 F.2d 462, 468-69 (9th Cir.1986); United States v. Brewer, 783 F.2d 841, 843 (9th Cir.1986); United States v. Smith, 563 F.2d 1361,1363 (9th Cir.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769 (1978); United States v. Brown, 501 F.2d 146, 150-51 (9th Cir.1974), rev’d on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980) (reviewing refusal to appoint eyewitness expert). But see Smith, 563 F.2d at 1364-66 (Hufstedler, J., dissenting). The issue defendant raises — one the majority and these other cases have for the most part ignored — is whether the scientific field has sufficiently developed since Amaral to conclude that such expert testimony could provide appreciable assistance to the jury beyond that obtained through cross-examination and the jurors’ collective common sense. Because the Amaral court examined the issue when the relevant theories were in their infant stages, see Amaral, 488 F.2d at 1153 (noting that no other reported decision addressed issue), I believe we must open our eyes and examine the current state of knowledge, rather than blindly reaffirming Amaral. The evidence is overwhelming that the Amaral conclusion — that juries could not gain from such expert testimony — is untenable today. Expert testimony that can explain to a jury the problems inherent in eyewitness identification is extremely relevant. Given the unreliability and pervasive influence of eyewitness testimony, expert testimony is not only more probative than" }, { "docid": "11448184", "title": "", "text": "its broad discretion to exclude expert testimony. United States v. Mara-belles, 724 F.2d 1374, 1381 (9th Cir.1984). Dr. Heglar’s inability to give a definite opinion merely contributed to the trial court’s conclusion that this testimony would not be helpful to the jury. The trial court believed that the untrained jury could compare the photographs of the robber with those of Brewer without the special assistance of an expert. The trial court should not admit expert testimony if it will not be helpful to the jury. Fed.R.Evid. 702. We conclude that the trial court’s ruling on this evidence was not manifestly unreasonable and accordingly uphold the ruling. United States v. Marabelles, 724 F.2d at 1381. 2. Expert Eyewitness Testimony Brewer next contends that the trial court should have appointed Dr. Shomer, an expert on the defects in eyewitness identifications, to assist in the preparation of his defense pursuant to 18 U.S.C. § 3006A(e)(l). The statute requires the court to authorize defense services for indigent defendants “when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” United States v. Bass, 477 F.2d 723, 725 (9th Cir.1973) (citing United States v. Theriault, 440 F.2d 713, 716-17 (5th Cir.1971) (Wisdom, J., concurring), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973)). In addition, the defendant must show, by clear and convincing evidence, “the prejudice ... caused by the court’s failure to appoint an expert.” United States v. Sims, 617 F.2d 1371, 1375 (9th Cir.1980). We have observed that cross-examination should be effective to expose any inconsistencies or deficiencies in eyewitness identifications. United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973). Brewer has not shown that “his cross-examination of the eyewitnessfes] was any less effective without the services of the expert.” Sims, 617 F.2d at 1375. Consequently, Brewer has not met his burden of showing actual prejudice caused by the failure to appoint his expert. In light of this conclusion, we do not consider whether a reasonable attorney, under the" }, { "docid": "8132755", "title": "", "text": "federal government probably decided to leave the prosecution in the hands of the state authorities, perhaps as a matter of efficient allocation of resources. In any case only two months elapsed between the dismissal of the state charge and the filing of the federal indictment. Thus, it would appear that, after learning of the dismissal of the state charge, the federal government acted promptly in bringing the federal prosecution. II. Expert Testimony Appellant next argues that the district court erred in denying his motion for expert services. Appellant contends that he should have been allowed expert testimony in the form of a criminologist who would have testified about the inherent inaccuracies of eyewitness identification. Specifically, appellant challenges the district court’s rejection of his request for government funds under 18 U.S.C. § 3006A(e) to pay for preparation of a testimonial offer on the subject of scientific evidence relating to perception and memory of eyewitnesses. Admission or exclusion of expert testimony is a matter within the sound discretion of the district court. United States v. Oliver, 525 F.2d 731, 737 (8th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). We are satisfied that the district court acted well within its discretion when it found the offer in this case was not sufficiently beyond the understanding of lay jurors to satisfy Fed.R.Evid. 702. See United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973) (reciting requirements of proper subject and accepted scientific analysis of credibility of eyewitness identification). Thus, we find the district court did not abuse its discretion by denying appellant’s request for expert services under 18 U.S.C. § 3006A(e). We do not believe that this expert witness would have assisted the jury in evaluating the robbery victim’s perception and subsequent identification of his assailant. Furthermore, the unfair prejudice which might have resulted because of the aura of reliability and trustworthiness that surrounds scientific evidence outweighed any small aid the expert testimony might have provided. See United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979). III. Preindictment Lineup Identification Appellant also argues that the district court" } ]

[ { "docid": "8959455", "title": "", "text": "went only to the lesser count would give appellant the benefit of the doubt and justify our vacating the three theft counts. If, on remand, such a stipulation is entered, it remains necessary for the court to resentence Sellers on the possession count alone. Should the Government choose not to so stipulate, the conviction on all counts will be vacated and Sellers awarded a new trial. For the reasons stated, the judgment is set aside, and the case remanded to the district court for proceedings consistent with this opinion. It is so ordered. ORDER On motions of the Niagara Fire Insurance Company and the Union Trust Company of Fallston, North Carolina, for the return of certain monies now in the possession of the United States Marshal for the Western District of North Carolina, said monies having been seized by Federal Bureau of Investigation agents pursuant to a search of the apartment occupied by Willie Foster Sellers and wife in Atlanta, Georgia, on or about September 25, 1973, it is hereby-ordered that the matter be referred to the United States District Court for the Western District of North Carolina for disposition following further proceedings in the criminal case against the aforementioned Willie Foster Sellers recently remanded in our decision of April 10, 1975. Defendant’s motion will be filed. . At the suppression hearing, the Government sought to bolster the affidavit by the testimony of the issuing magistrate regarding matters discussed between himself and the FBI agent seeking the warrant. These matters were neither sworn to nor recorded as required by Fed.R.Crim.P. 41(c) and must therefore be disregarded. See United States v. Acosta, 501 F.2d 1330 (5th Cir. 1974), reconsidered en banc 509 F.2d 539 (5th Cir., filed March 7, 1975) (Judgment of the trial court admitting such evidence affirmed by an evenly divided court)." } ]

[ { "docid": "23295230", "title": "", "text": "to support a finding of probable cause, particularly in view of the corroboration provided by independent means. See United States v. Sporleder, 635 F.2d 809, 812 (10th Cir. 1980); United States v. Willis, 633 F.2d 930, 932 (10th Cir. 1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 950, 67 L.Ed.2d 117 (1981). B. Compliance with Rule 41 The warrants were issued by a state associate district judge on federal warrant forms. The affidavits supporting the warrants alleged that the property sought constituted evidence of violations of federal law. The warrants were initiated by an assistant United States attorney (see infra) and executed by a federal agent. Federal officials were present during the search. Given this significant federal involvement, we conclude that the warrants are federal in nature and must comply with Fed.R.Crim.P. 41 as well as constitutional requirements. See United States v. Pennington, 635 F.2d 1387, 1389 (10th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Rios, 611 F.2d at 1347 & n.22. Massey contends that the warrants were not requested by a federal officer as required by Rule 41(a), that the return required by the warrants was improper under Rule 41(c)(1), and that oral testimony taken from the affiant by the issuing judge was not recorded as required by Rule 41(c)(1). In reviewing the denial of a motion to suppress, we must consider the evidence presented at the suppression hearing in the light most favorable to the Government. Rios, 611 F.2d at 1344. The evidence presented below establishes that although the warrants were issued upon the affidavit of an agent of the Oklahoma Narcotics Bureau, they were requested by an assistant United States Attorney who telephoned the state judge in advance and accompanied the state agent when the affidavit was presented to the judge. This method of obtaining a search warrant satisfies the requirement of Rule 41(a) that the warrant be issued “upon request of ... an attorney for the government.” See United States v. Carra, 604 F.2d 1271, 1273 (10th Cir.), cert, denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425" }, { "docid": "23295233", "title": "", "text": "to satisfy probable cause, as we have held here, the fact that oral testimony was also received but not recorded does not require suppression of the evidence obtained. See United States v. Sturgeon, 501 F.2d 1270, 1274 (8th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667 (1974). We have carefully reviewed Massey’s remaining allegations of error and conclude that they are without merit and do not require further discussion. The case is reversed and remanded for further proceedings consistent with this opinion. . “[I]f a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.” Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). . Because Miranda warnings may have been given in this case, we decline to determine whether, in the absence of such warnings, evidence of defendant’s prior silence is of so little probative worth that its value is outweighed by its prejudicial effect. See United States v. Impson, 531 F.2d 274, 277 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978). Under our supervisory power over the judicial process, we could require a new trial free from prejudicial error if we made such a determination. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). . The affidavits supporting both warrants were identical. . Fed.R.Crim.P. 41(a) provides: “A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.” . Fed.R.Crim.P. 41(c)(1) provides: “(1) Warrant upon Affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state" }, { "docid": "14007854", "title": "", "text": "8/30/84 Ida Maggitt had $1,000.00 in cash and used this money, which was in $100.00 and $50.00 bills to post Tommy Maggitt’s bond. . The government suggests in passing that the warrant was a state search warrant; therefore the Rule 41(c)(1), Fed.R.Crim.P., recording requirement is inapplicable and, as a matter of Mississippi state law, the officers’ unrecorded oral statements at the warrant proceeding may be taken into account in a probable cause determination. Brief of Appellee at 21. However, under Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927), Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949), and United States v. Hanson, 469 F.2d 1375, 1377 (5th Cir.1972), none of which is cited by the government, this search was plainly \"federal in character”; therefore the Federal Rules of Criminal Procedure were applicable. \"[I]f a federal agent is invited to participate in a joint search with state officers, the legality of the search and the admissibility of the evidence seized in the search must be tested, in a federal prosecution, as if the search were exclusively federal,\" Id. See also United States v. McCain, 677 F.2d 657, 662 (8th Cir.1982). Rule 41(c)(1) apparently prohibits use of the oral testimony before the city judge in a determination of whether probable cause to issue the search warrant existed, because the hearing was not recorded and notes of the hearing were not made. See United States v. Hill, 500 F.2d 315, 322 n. 3 (5th Cir.1974) (Rule 41(c)(1) as amended in 1972 requires that interrogation and affiant’s responses be recorded and made a part of the affidavit if magistrate relies on answers to establish probable cause), cert. denied, 420 U.S. 931, 95 S.Ct. 1135, 43 L.Ed.2d 404 (1975). Because we need not decide whether the search warrant was issued on a showing of probable cause, however, we do not examine the substance of the officers’ answers at the warrant proceeding. In Part III, injra, we discuss whether the fact that the judicial authority held a proceeding or hearing in which the" }, { "docid": "17912664", "title": "", "text": "adequate nexus between the residence and any criminal activity within the four corners of the affidavit is not necessarily fatal, provided that the information is actually presented to the magistrate through sworn oral testimony. Shields, 978 F.2d at 946. The Fourth Amendment does not require that the basis for probable cause be established in a written affidavit; it merely requires that the information be given by “Oath or affirmation” before a judicial officer. U.S. Const, amend. IV. Moreover, the Fourth Amendment “does not require that statements made under oath in support of probable cause be tape-recorded or otherwise placed on the record or made part of the affidavit.” Shields, 978 F.2d at 946. It follows that the issuing magistrate may consider sworn, unrecorded oral testimony supplementing a duly executed affidavit to determine whether there is probable cause upon which to issue a search warrant, see, e.g., id.; United States v. Clyburn, 24 F.3d 613, 617 (4th Cir.1994); Frazier v. Roberts, 441 F.2d 1224, 1226 (8th Cir.1971), and that Detective Struve’s oral testimony could properly inform Judge Timmers’ decision to issue a warrant in this case. A review of Detective Struve’s written affidavit and sworn oral testimony given before Judge Timmers reveals that probable cause existed to support the issuance of a search warrant for Tran’s mobile home. Here, Detective Struve submitted a written affidavit that contained a sufficiently detailed description of Tran’s residence, of the arson at Kimberly Beauty College, and of the items to be seized. His oral testimony elaborated on the information provided by the affidavit. Detective Struve testified at the suppression hearing that it was Judge Timmers’ practice to question officers at length under oath about the relationship between the place to be searched and the investigation. During such questioning, Detective Struve established that the defendant lived at the residence to be searched, and that he believed that evidence of the arson would be found in the defendant’s mobile home. Whatever deficiencies that may have existed in the establishment of probable cause in Detective Struve’s affidavit were cured by Detective Struve personally during his appearance before Judge" }, { "docid": "1421683", "title": "", "text": "to suppress pursuant to Rule 11(a)(2), Fed.R.Crim.P. On June 1, 1992, he was sentenced to a term of 63 months and this appeal ensued. Finch’s appeal raises the following issues: (1) Whether the search warrant was invalid because it was issued by a General Sessions Court judge who was not a judge of a “court of record.” This issue is raised for the first time on appeal. (2) Whether the affidavit for the search warrant was insufficient to support a finding of probable cause. (3) Whether the search warrant was invalid because of purposefully omitted facts which would have cast doubt on the existence of probable cause. (4) Whether the evidence seized during the raid should be suppressed because the police did not announce their purpose when demanding entry. (5)Whether statements and evidence must be suppressed because they were obtained from Finch by unlawful threats and intimidation. The record on appeal also suggests that the police forced entry into a private residence without giving the occupants a reasonable opportunity to open the door. I. The search warrant was issued by William Hackett, Judge of Division 1, General Sessions, Shelby County, Tennessee. Rule 41(a) of the Tennessee Rules of Criminal Procedure provides that “magistrates” may issue search warrants. Section 40-5-102, Tennessee Code Annotated, provides that judges of the courts of general sessions are magistrates. Rule 41(a) of the Federal Rules of Criminal Procedure requires that search warrants issued upon the request of a federal law enforcement officer or an attorney for the government may be issued by state courts of record. The appellant asserts that Judge Hackett is not a judge of a court of record. He then argues, that the Federal Rules of Criminal Procedure should be used to test the authority of Judge Hackett to issue the search warrant in this case because it was used in a federal prosecution.. This issue was not raised in the trial court below. We need not determine whether there was plain error because there was no error. The search was conducted by state police officers pursuant to a state search warrant. In" }, { "docid": "2286466", "title": "", "text": "delay the search until after the defendants, who had left the premises, returned, the magistraté announced that he would authorize the search after 10:00 P.M. provided it was conducted within one hour after the defendants’ return. Sometime during the proceedings, Agent Ripley signed the affidavit form under oath. The magistrate issued the search warrant. Later, the proceedings recorded on the tape were transcribed, and the magistrate certified to the accuracy of the transcript. The agents executed the search warrant, seized the subject articles, and arrested the defendants, who were later indicted for offenses under the controlled substance law, 21 U.S.C. §§ 841(a)(1) and 846. The defendants moved to suppress the evidence on the ground that the procedure by which the warrant was obtained had not complied with Rule 41(c), Fed.R. Crim.P., and in particular the first sentence of that rule, which provides as follows: A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. The asserted defect was that the sworn statement of probable cause was not set out in the affidavit itself. The District Court suppressed the evidence on that ground. This appeal followed. We believe the District Court’s reading of the rule was unduly narrow, and that the recording of the sworn statement made before the magistrate was properly incorporated by reference into the affidavit and made a part of it. Whatever the situation before the 1972 amendment to Rule 41(c), that amendment evidences an intention that a recorded sworn oral statement by the affiant made in the presence of the magistrate should be considered as a part of the affidavit. The fourth sentence of Rule 41(c)(1), added by the 1972 amendment, states as follows: Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witness he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. Thus" }, { "docid": "22280920", "title": "", "text": "the government failed to comply with Rule 41(a), Fed.R.Crim.P., which provides that a search warrant may be issued “upon request of a federal law enforcement officer or an attorney for the government.” Betts insists that the record lacks any evidence that the request for the search warrant was made by a federal law enforcement officer or a government attorney. We disagree. Although Sergeant Swain, a state officer, signed the affidavit in support of the search warrant, the warrant was issued to Laurence Courtney, a federal law enforcement officer. Moreover, the district court found that an Assistant United States Attorney accompanied Swain 'to the magistrate to obtain the warrant. This adequately satisfies the requirements of Rule 41(a). See United States v. Carra, 604 F.2d 1271, 1273 (10th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979). Lastly, Betts contends that Swain’s affidavit in support of the warrant contained false statements made knowingly or intentionally, or with reckless disregard for the truth. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court ruled that a search warrant must be voided and the fruits of the search excluded if a defendant shows by a preponderance of the evidence that a warrant affidavit includes a false statement made knowingly and intentionally or with reckless disregard for the truth and if, with the affidavit’s false material excluded, the affidavit is insufficient to establish probable cause. Id. at 155-56, 98 S.Ct. at 2676-77. The district court concluded that Betts failed to meet this standard, and we see no reason to disturb that ruling. Even assuming the presence of inaccurate information in the affidavit, the remaining portions are sufficient to base a finding of probable cause. IY. MIRANDA VIOLATION AND SUPPRESSION OF “FRUITS” Sangineto raises two contentions concerning the failure of Sergeant Cox and Ranger Pike to administer the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), following his arrest at the 7-Eleven. Initially, he argues that the cocaine seized from his truck is inadmissible as “fruit of" }, { "docid": "18781534", "title": "", "text": "reliance on a search warrant was not precluded by the failure to record warrant proceedings. In Maggitt, the investigating officers appeared before a city judge who questioned them about portions of their affidavit. Although, after hearing the officers’ responses to the questions, the judge issued the warrant, he failed to record the proceedings as required by Fed.R.Crim.P. 41(c)(1). The Fifth Circuit held that under these circumstances: It was objectively reasonable for the officers to believe that whatever flaws may have existed in the warrant were cured by the city judge’s questions and their answers at the warrant application proceeding, cf. [United States v.] Merida, 765 F.2d [1205] at 1214 (objective good faith of officers bolstered by their personal knowledge that search warrant emanated in part from grand jury indictment, although fact of indictment apparently was not set forth in search warrant affidavit), although the proceeding was not recorded, in violation of Fed.R.Crim.P. 41(c)(1). A reasonable police officer would be justified in assuming that the city judge was following the applicable non-constitutionally based portions of the Federal Rules of Criminal Procedure. Although “Leon imposes an obligation on the agents, as well as the magistrate, to ensure that a warrant is correctly obtained,” United States v. Freitas, 610 F.Supp. 1560, 1572 (N.D.Cal.1985), there appears to be no good reason to punish officers by excluding the evidence for the city judge’s failure to ensure that the recording requirement of Rule 41(c)(1) was met. That aspect of Rule 41(c)(1) is not designed to deter police misconduct. Exclusion of the evidence is not called for on the facts of this case. Id. at 1036 (footnote omitted). Like the Court in Maggitt, we conclude that exclusion of the evidence is not appropriate here and that it was objectively reasonable for the officers in this case to rely on their personal knowledge of the two unrecorded proceedings before the magistrate on the evening of January 21, 1985. In finding against the government on the good faith issue, the district court impermissibly restricted its focus to DiMeo’s subjective belief that information concerning Lawrence’s reliability had to be included" }, { "docid": "2286481", "title": "", "text": "need not cross-examine the affiant. Rose v. United States, 45 F.2d 459 (8th Cir. 1930). We have found no case, however, either before or after the adoption of Rule 41(c), holding that oral testimony before the magistrate that had been recorded and incorporated by reference into an affidavit could not be considered in determining probable cause. The practice of incorporation by reference is of long standing. See Siden v. United States, 9 F.2d 241, 243 (8th Cir. 1925). . The Advisory Committee Notes to the 1972 amendment state: If testimony is taken it must be recorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate basis for determining the sufficiency of the evi-dentiary grounds for the issuance of the search warrant if that question should later arise. . Paragraph (2) provides that “when circumstances make it reasonable to do so,” a warrant may issue “upon sworn oral testimony of a person who is not in the physical presence of a federal magistrate . . . See also the Advisory Committee notes to the 1972 Amendment: The provision . . that the magistrate may examine the affiant or witnesses under oath is intended to assure him an opportunity to make a careful decision as to whether there is probable cause. It seems desirable to do this as an incident to the issuance of the warrant rather than having the issue raised only later on a motion to suppress the evidence. See L. Tiffany, D. McIntyre, and D. Rotenberg, Detection of Crime 118 (1967).' That a conventional affidavit often fails to produce the desired “careful decision as to whether there is probable cause” was pointed out by the Tiffany, et aI., reference cited by the Committee: [T]here are some places, Chicago, for example, where it is common for motions to suppress to be granted. . . . This reflects in part the failure of the first judge to take the issue of the warrant seriously Whatever the explanation, this fact when it exists further detracts from the search warrant as a desirable alternative for police. Id." }, { "docid": "3228496", "title": "", "text": "gesture. Rule 41(c)(2)(D) further requires that the magistrate record all of the call after the caller informs the magistrate that a search warrant is requested. The call from Mr. Peterson was not recorded, at least insofar as this record discloses. In all, therefore, the procedure used here entailed no less than four technical violations of the telephonic search warrant procedure described by Rule 41(c)(2). We are not convinced, however, that these violations required suppression. A violation of Rule 41 is not “fundamental” unless it also involves a constitutional violation. See United States v. Vasser, 648 F.2d 507 (9th Cir. 1980). “Non-fundamental” noncompliance with Rule 41 requires suppression only if (1) there was “prejudice” in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of the Rule. Vasser, supra; United States v. Radlick, 581 F.2d 225, 228 (9th Cir. 1978). In this case, no constitutional violation tainted the warrant. Consequently, we test the validity of the procedure under the standards for “non-fundamental” noncompliance. We conclude that suppression was not required. At every step, the spirit of Rule 41 met with full compliance. A duplicate original was properly prepared, and signed by proxy as the Rule requires. A full account of the probable cause affidavit was recorded and preserved for later examination. Agent Lucchesi was sworn as a witness, albeit after the giving of the affidavit. See infra. There is nothing to indicate that the warrant would not have been issued had the magistrate insisted that the procedure fully comply with Rule 41. Mr. Peterson could certainly have filled out the duplicate original and signed it. The only differences of any substance between the Rule 41 procedure and that followed here would be that Agent Lucchesi’s testimony should have been taken separately as that of a witness only, and the warrant should have been issued to Mr. Peterson. We find that the warrant would have been issued in any event. There is absolutely no evidence indicating any bad faith" }, { "docid": "7865892", "title": "", "text": "emitted smells associated with the manufacture of methamphetamine. We conclude, therefore, that the affidavit redacted of any misrepresentations provides a sufficient basis for probable cause to search. C. Admissibility of the Evidence Appellants allege that by failing to notify them of the search of the storage locker, the government violated Fed.R.Crim.P. 41(d). We conclude that although appellants correctly identify a violation that would ordinarily warrant suppression, the evidence is admissible in this instance because the officers relied in good faith upon a warrant. 1. Violation of Rule 41(d) We review de novo the question of whether a violation of Rule 41(d) requires suppression. United States v. Freitas, 856 F.2d 1425, 1428 (9th Cir.1988) (Freitas II). Rule 41(d) requires that “[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 property taken or shall leave the copy and receipt at the place from which the property was taken.” A warrant which does not provide for notice of the search fails to comply with Rule 41(d). United States v. Freitas, 800 F.2d 1451, 1455-56 (9th Cir.1986) (Freitas I). In this case, a magistrate approved the deletion of the notice provisions in the warrant which the agents executed on January 13, 1985. Thereafter, little activity occurred until March 2, 1985, when someone took the boxes of chemicals stored in the locker to a suspected laboratory in another building. On March 11,1985, 57 days after the original warrant was executed, agents searched the second building, found a methamphetamine lab, and arrested several suspects. The government did not serve appellants notice of the “sneak and peek” search until they were arrested. This conduct is a clear violation of Rule 41(d). Once a violation of Rule 41(d) is identified, the next inquiry is whether the violation is “fundamental” or “non-fundamental.” This inquiry is necessary to de termine whether the evidence produced by the search must be suppressed. Fundamental violations, ones which are unconstitutional under traditional Fourth Amendment standards, require automatic suppression of the evidence produced." }, { "docid": "660620", "title": "", "text": "seizure under the criminal laws of the State is on the person or in or on the building, apartment, premises, place, or thing. Md.Code, Crim. Proc. § l-203(a)(l). Federal Rule of Criminal Procedure 41(b), with which Claridy claims Gladstone was required to comply in obtaining his warrant, provides, in pertinent part: Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government: (1) a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district. Fed.R.Crim.P. 41(b)(1). In my view, the inquiry into whether Gladstone was required to comply with Rule 41 in obtaining the warrant must begin with United States v. Williams, 977 F.2d 866 (4th Cir.1992). In Williams, a state police officer obtained a search warrant from a county magistrate based on probable cause that evidence of crack cocaine crimes would be found at the place to be searched. As part of his training, a federal officer accompanied state officers in executing the warrant. The defendants, upon their arrests, were “booked ... as federal prisoners,” and an assistant United States Attorney indicated that they would be federally prosecuted. Id. at 868. Seeking to suppress the fruit of the search, the defendants contended that the officer had been required to obtain the war rant in compliance with Rule 41 because the officers had intended from the beginning that the case would be prosecuted federally. The district court rejected the defendants’ argument, finding that the decision to proceed federally was made after the search warrant had been obtained and executed. The defendants reiterated their argument. on appeal, and we affirmed. In so doing, we explained that “the test to be applied in determining whether a warrant must be obtained in compliance with Rule 41(a) is whether the warrant application was made ‘at the direction or urging of a federal officer.’ ” Id. at 870 (quoting United States" }, { "docid": "23295231", "title": "", "text": "not requested by a federal officer as required by Rule 41(a), that the return required by the warrants was improper under Rule 41(c)(1), and that oral testimony taken from the affiant by the issuing judge was not recorded as required by Rule 41(c)(1). In reviewing the denial of a motion to suppress, we must consider the evidence presented at the suppression hearing in the light most favorable to the Government. Rios, 611 F.2d at 1344. The evidence presented below establishes that although the warrants were issued upon the affidavit of an agent of the Oklahoma Narcotics Bureau, they were requested by an assistant United States Attorney who telephoned the state judge in advance and accompanied the state agent when the affidavit was presented to the judge. This method of obtaining a search warrant satisfies the requirement of Rule 41(a) that the warrant be issued “upon request of ... an attorney for the government.” See United States v. Carra, 604 F.2d 1271, 1273 (10th Cir.), cert, denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979). The record reflects that the warrant was returned to a United States District Judge, notwithstanding that the warrant itself directed its return to the state judge who issued it. Although Rule 41(c) specifies that the warrant “shall designate a federal magistrate to whom it shall be returned,” we have in the past refused to reverse for violation of this requirement when the actual return was properly made. See id. at 1273-74. A hypertechnical approach to search warrants is not appropriate. See Ventresca, 380 U.S. at 108-09, 85 S.Ct. at 745-46; Rios, 611 F.2d at 1347. Finally, Massey argues that the state judge took oral testimony to supplement the affidavit submitted to support the warrants and failed to record the testimony as required by Rule 41(c). At the hearing on the motion to suppress the evidence obtained from the search, the state judge testified that he did in fact require oral testimony from the affiant but that it was substantially the same as the statements made in the affidavit. When the affidavit itself is sufficient" }, { "docid": "10089595", "title": "", "text": "Jones as the conspiracy’s ringleader in the Washington, D.C. area. The affidavit supplies the agent’s basis of knowledge for the information contained therein, which includes confidential source information, police surveillance, and interceptions of wireless communications between Jones and his alleged co-conspirators. (Def.’s Omnibus Mot. Ex. 2.) Specifically with respect to the Moore Street location, the affidavit notes that “a Jeep Cherokee (registered in the name of Deniece Jones)” had “been observed parked at the Moore Street Address,” and that “[sjurveillance frequently showed Antoine Jones driving the Jeep.” (Id. at 34-35.) The Court therefore concludes that the affidavit clearly establishes probable cause to search Jones’ Moore Street residence, and moreover, for the reasons previously explained, Jones is not entitled Franks hearing to determine the validity of the warrant because he has alleged no facts to support his claim that the affidavit contained “intentional misstatements and a reckless disregard for the truth.” (Id. at 14.) Jones next argues that the investigating officers violated Fed.R.Crim.P. 41(f) by failing to “present either Jones, his wife or son a copy of the warrant with attachment to inform them of the scope of the warrant, nor did they leave a copy on the premises.” (Def.’s Omnibus Mot. at 16.) Under Rule 41(f), the “officer executing the warrant must ... give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken, or ... leave a copy of the warrant and receipt at the place where the officer took the property.” Fed.R.Crim.P. 41(f)(3). In support, Jones cites United States v. Gantt, 194 F.3d 987 (9th Cir.1999), for the proposition that all evidence seized during a search conducted in violation of Rule 41(f) should be suppressed. The D.C. Circuit has not resolved the question of whether a violation of Rule 41 merits the suppression of the disputed evidence. See United States v. Weaks, 388 F.3d 913, 915 (D.C.Cir.2004) (referring to question as “undecided”). The Ninth Circuit in Gantt held, however, that “[violations of [Rule 41(f)] do not usually demand suppression.” 194 F.3d at 1005." }, { "docid": "23538815", "title": "", "text": "Ortiz, signed an affidavit in the presence of a United States Commissioner. Solely on the basis of this affidavit the Commissioner issued a warrant for the search of appellant’s apartment. In the afternoon of the same day, August 29, government agents, armed with the search warrant, entered appellant’s apartment. There they found appellant, and after a search of approximately forty-five minutes the cache of heroin was discovered. It was for the possession of this quantity of heroin that appellant was thereafter indicted and convicted. ¡ At the hearing on the motion to suppress Judge McGohey ruled that the affidavit did not afford sufficient basis for the Commissioner to find probable cause under the Supreme Court’s recent decision in Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. However, Judge McGohey went on to hold that the arresting officers were possessed of sufficient facts, albeit unrevealed to the Commissioner, to justify appellant’s arrest upon probable cause. Judge McGohey then concluded that, an arrest without an arrest warrant being proper, the search which produced the cache of heroin also was proper as a lawful search incidental to a lawful arrest. Hence the motion to suppress was denied. We affirm the denial of appellant’s motion to suppress. We do so because we are unanimous in concluding that the search warrant was in all respects valid. Appellant does not contend that the warrant was irregularly issued, or that the premises to be searched were inadequately described. Nor does he contend that the property seized was insufficiently described or that it was an improper object for an officer’s search. Appellant’s sole objection to the warrant is that the affidavit of Ioanides, alias Ortiz, was insufficient for the Commissioner to determine probable cause therefrom. Ioanides’ affidavit is set out in full in the footnote. Under Rule 41(c) of the Federal Rules of Criminal Procedure the Commissioner is to determine probable cause solely from affidavits sworn to before him. Therefore, the question we must determine is whether — given affiant’s statement in this affidavit that two days previously, in appellant’s apartment, he" }, { "docid": "23295234", "title": "", "text": "States v. Impson, 531 F.2d 274, 277 (5th Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 803 (1978). Under our supervisory power over the judicial process, we could require a new trial free from prejudicial error if we made such a determination. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). . The affidavits supporting both warrants were identical. . Fed.R.Crim.P. 41(a) provides: “A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government.” . Fed.R.Crim.P. 41(c)(1) provides: “(1) Warrant upon Affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for" }, { "docid": "8765990", "title": "", "text": "to establish probable cause for the search by offering the testimony of officer Swanson and another police officer as to what Swanson testified to before the magistrate. It is urged that the unrecorded sworn testimony of Swanson, if admitted, would establish sufficient underlying circumstances from which a magistrate could conclude that the informant’s information was accurate. The federal rules and the Kansas statutes both permit the issuing magistrate, in addition to considering the affidavit, to examine the affiant and any additional witnesses before ruling on a request for a search warrant. Fed.R.Crim.P. 41(c) provides, in part: “Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceedings shall be taken down by a court reporter or recording equipment and made part of the affidavit. ...” K.S.A. 22-2502(2)(b) provides: “(b) Before ruling on a request for a search warrant, the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he or she may produce. Such proceeding shall be taken down by a certified shorthand reporter or recording equipment and made part of the application for a search warrant.” History: K.S.A. 22-2502; L.1976, ch. 164, § 1; July 1. Federal Rule 41(c) was amended in October, 1972 to provide for recording of oral testimony and incorporation of the recording into the affidavit. The Kansas rule was amended to the same effect in July, 1976. The amendments of both rules are applicable to the case at bar. The underlying rationale of the amendment to Rule 41(c) is important, and the note to the amendment is instructive: “. . .If testimony is taken it must be recorded, transcribed, and made part of the affidavit or affidavits. This is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise.” Fed.R. Crim.P. 41(c). It is apparent the reason for adopting this procedural safeguard is" }, { "docid": "8765984", "title": "", "text": "SETH, Chief Judge. The defendant, Melvin E. Hittle, is charged with a violation of 18 U.S.C. § 2314, interstate transportation of stolen property. This is an interlocutory appeal by the Government, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the District of Kansas, sustaining a defense motion to suppress evidence. There are two primary issues on appeal. The first is whether the affidavit supporting the state search complies with the probable cause requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and second, whether additional evidence in the form of unrecorded sworn oral testimony before the Kansas magistrate can be considered in determining probable cause in light of the recording requirements of the Kansas statutes and the Federal Rules of Criminal Procedure. We conclude the affidavit fails to meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and that unrecorded sworn oral testimony cannot be considered in determining probable cause in this context. Prior to the initiation of any federal proceedings against him, the defendant was the subject of a state investigation of a stolen check ring. Pursuant to that investigation, Kansas State authorities obtained a search warrant for the residence of the defendant based upon the affidavit and oral testimony of a Kansas City, Missouri, police officer, Robert Swanson. The warrant was predicated upon information supplied by a confidential informant indicating that the defendant Hittle had in the apartment various items of contraband relating to the stolen check ring. Upon execution of the warrant the bulk of the articles specified by the informant as being in the defendant’s possession were seized by the officers. Federal authorities were later notified of the existence of certain other items seized in the search which implicated the defendant in the commission of federal criminal offenses. On the basis of this evidence the defendant was charged with interstate transportation of stolen property. Upon commencement of proceedings in United States District Court, defendant Hittle moved to suppress all evidence recovered under the state search warrant" }, { "docid": "12061267", "title": "", "text": "171-72, 98 S.Ct. 2674, 2627, 2684, 57 L.Ed.2d 667 (1978) (defendant must make preliminary showing to be entitled to evi-dentiary hearing challenging veracity of statement in warrant affidavit). III. THE STATE SEARCH WARRANT Mitro also appeals from the denial of his motion to suppress the evidence seized pursuant to the state search warrant. He argues that this evidence should have been suppressed because the warrant violated Fed.R.Crim.P. 41(a). Rule 41(a) states: Mitro contends that the requirements of Rule 41 applied to the warrant in this case because federal agents played a large role in the investigation and search. He further argues that because the warrant was issued by an assistant clerk of the Quincy District Court rather than “a judge of a state court” as required by Rule 41(a) the evidence derived from the warrant must be suppressed. (a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government. The resolution of this issue is controlled by this court’s opinion in United States v. Krawiec, 627 F.2d 577 (1st Cir.1980). In Krawiec, we upheld the admission of evidence derived from a state search warrant over defendant’s objection that the warrant violated Rule 41(b) because the supporting affidavit failed to indicate that there was probable cause to believe a federal (as opposed to only a state) crime had been committed. The court in Krawiec reasoned that, while federal officers played a substantial role in the investigation and subsequent search, the warrant was a state warrant given the fact that local police were also involved in the investigation and that the federal officers in good faith believed that the search was for the purpose of pursuing a state rather than a federal prosecution. Under these circumstances, the court ruled that the warrant need not satisfy every requirement of Rule 41. Rather, recognizing the legitimate practice of state and federal cooperation" }, { "docid": "17859092", "title": "", "text": "asked to decide whether Comstock’s Fourth Amendment rights have been infringed. Comstock does not claim that the search warrant was issued on other than a proper showing of probable cause, that the affidavit supporting it was false, that the issuing magistrate was insufficiently competent or neutral, or that the search was otherwise unreasonable. He contends only that evidence must be suppressed because the state court search warrant was not issued by a court of record as required by Rule 41(a). On its face, Rule 41 appears to govern the validity of only federal search warrants requested by and issued to federal law enforcement officers, not of state warrants sought by and issued to local police, as occurred in this case: “A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government. “... The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States_” Fed.R.Crim.P. 41(a) & 41(c)(1) (emphasis added). Past decisions of this Court, however, have applied Rule 41(a)’s court of record requirement to exclude in a federal prosecution evidence obtained under an otherwise valid state search warrant, requested by and issued to state officers on a showing of state law violation, where the issuing court was not a court of record and federal officers participated in the search. In Navarro v. United States, 400 F.2d 315 (5th Cir.1968), this Court required suppression of evidence under Rule 41(a) after a Texas city corporation court — not a court of record — issued a warrant at the behest of local police officers, respecting a heroin possession offense. The warrant was executed by two federal agents and two non-federal officers, and the incriminating evidence was discovered by the latter in the presence of the federal agents. Navarro was then arrested" } ]

[ { "docid": "22697897", "title": "", "text": "“taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.” Holland v. United States, 348 U. S. 121, 140 (1954). In only one case have we held that a definition of reasonable doubt violated the Due Process Clause. Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam). There, the jurors were told: “ ‘[A reasonable doubt] is one. that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’” Id., at 40 (emphasis added by this Court in Cage). We held that the highlighted portions of the instruction rendered it unconstitutional: “It is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When, those statements are then considered with the reference to ‘moral certainty,’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id., at 41. In a subsequent case, we made clear that the proper inquiry is not whether the instruction “could have” been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. Estelle v. McGuire, 502 U. S. 62, 72, and n. 4 (1991). The constitutional question in the present cases, therefore, is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard. Although other courts have held that instructions similar to those given" } ]

[ { "docid": "12075689", "title": "", "text": "DOUBT INSTRUCTION The appellant contends that the instructions to the court members which purported to define reasonable doubt violated the appellant’s right to due process of law by lessening the government’s burden of proof. We disagree. The instructions given by the military judge are virtually identical to the instructions found in the benchbook, except for the first line in which he says “a doubt founded in reason.” The appellant relies almost exclusively upon the Cage decision which reversed a conviction because the jury instructions equated reasonable doubt with “grave uncertainty” and “actual substantial doubt.” Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990); see Gaskins v. McKellar, — U.S. -, 111 S.Ct. 2277, 114 L.Ed.2d 728 (1991). There are two problems with appellant’s reliance on Cage. First, in the appellant’s ease reasonable doubt is not compared to grave uncertainty or actual substantial doubt. Second, the precedential value of Cage is questionable in light of the Supreme Court’s recent repudiation of the analytical standard underlying its decision in Cage. See Estelle v. McGuire, — U.S. -, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The test now is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Id. In addition, contrary to the appellant’s assertion, the language “to a moral certainty” is proper. Hatheway v. Secretary of the Army, 641 F.2d 1376 (9th Cir.1981), cert. denied, 454 U.S. 864, 102 S.Ct. 324, 70 L. Ed.2d 164 (1981). XXII. PROPORTIONALITY REVIEW The Court of Military Appeals recognized that a proportionality review is not required by the Eighth Amendment, but held that such a review is encompassed under this Court’s obligation under Article 66(c), UCMJ. United States v. Curtis, 32 M. J. 252, 270 (C.M.A.1991), cert. denied, — U.S. -, 112 S.Ct. 406, 116 L.Ed.2d 354 (1991); United States v. Curtis, 33 M.J. 101 (C.M.A.1991). In accordance with Curtis, before a death sentence can be approved we must determine: (c) whether the death sentence adjudged is proportionate to other death sentences that have been imposed [using generally similar" }, { "docid": "21127742", "title": "", "text": "L.Ed.2d 339 (1990) (per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court found that instructions equating reasonable doubt with “substantial doubt” or “grave uncertainty,” when coupled with a reference to moral certainty, could have impermissibly lowered the government’s burden of proof. See id. at 40-41, 111 S.Ct. 328. In 1994, in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court noted that in 1850 “moral certainty meant a state of subjective certitude” but that more modern usage might lead a jury to “understand the phrase to mean something less than the very high level of probability required by the Constitution in criminal cases.” Id. at 12, 14, 114 S.Ct. 1239. The court also held that the moral certainty phrase, if standing alone, was improper, but if put in adequate context with other instructions was not constitutionally improper. See id. at 15-16, 114 S.Ct. 1239. After these decisions came a series of attacks on Cage IVictor jury instruction errors in earlier state convictions by way of habeas corpus petitions in the federal courts. Simpson brought exactly such an attack by petition for habeas corpus in federal court in 1997, although he had not challenged the instructions on those grounds at trial or raised those arguments on direct appeal of his conviction. In 1988, Simpson finally did raise challenges to the reasonable doubt jury instructions on two new trial motions in the state court, which were denied on waiver grounds. In 1990, the highest court of Massachusetts, the Supreme Judicial Court (“SJC”), denied review of his claims for post-conviction relief on the ground that his claims were neither new nor substantial. See Commonwealth v. Simpson, No. 90-274 (SJC for Suffolk County, Oct. 15,1990). The federal district court bypassed Simpson’s procedural default in not raising his challenges at trial or on appeal by concluding that “procedural default ... cannot be inferred” from the SJC’s denial and by finding that the state had created an exception to its contemporaneous objection" }, { "docid": "17161089", "title": "", "text": "in the charge, the jury was reminded of the severity of the State’s burden with the admonition that Brown should not be convicted “unless the facts proved by the evidence exclude every reasonable hypothesis of his innocence.” Thus, there is a vast difference between the charge given in the case before us and the charge given in Cage. Furthermore, the standard of appellate review applied by the Court in Cage has been modified by the Court’s decision in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The question, as Estelle explained, is not whether there is a possibility that a juror “could have” applied the instruction in an unconstitutional manner, but whether there is a “reasonable likelihood” that the jury did apply the instruction unconstitutionally. Id. at 61 & n. 4, 112 S.Ct. at 482 & n. 4; Victor, 511 U.S. at 6, 114 S.Ct. at 1243. Given the trial court’s numerous references to “reasonable doubt” and the severity of the State’s evidentiary burden, we conclude that there is no reasonable likelihood that the jury applied the challenged instruction in an unconstitutional manner. IV In conclusion, Brown has failed to establish that his conviction and sentence are unconstitutional. His various claims have been fully and fairly adjudicated both in the Louisiana state courts and by the district court below. The judgment of the state court concerning Brown’s allegations was neither “contrary to” nor “involved an unreasonable application of’ clearly established federal law. Nor was the state court’s decision “based on an unreason able interpretation of the facts.” Brown’s petition for habeas relief under 28 U.S.C. § 2254 therefore fails. We AFFIRM the judgment of the district court, and hereby VACATE the stay of execution granted pending appeal. AFFIRMED; stay VACATED. . Brown raises a list of additional issues not addressed at oral argument: that his sentence was unreliable; that he was denied effective assistance of appellate counsel; that the verdict form's use of \"recommends” rather than \"determines” violated his Eighth Amendment rights; that including the word \"unanimous” on the life sentence verdict form but not" }, { "docid": "21127741", "title": "", "text": "LYNCH, Circuit Judge. William H. Simpson was convicted in Massachusetts state court in 1974 of the murder of Thomas Morris, who was stabbed to death by Simpson’s associate while Simpson beat Morris with a baseball bat and hammer. Simpson is serving a life sentence without parole. At Simpson’s trial, the trial judge instructed the jury, in accord with longstanding tradition, that absence of reasonable doubt meant the jurors must be sure to a “moral certainty.” The judge defined moral certainty as the same degree of certainty jurors would want in making decisions of importance in their own lives. The judge also said that if the jurors had any serious unanswered questions about the defendant’s guilt, they must acquit. Massachusetts courts had employed moral certainty instructions since they were approved in a murder case of much notoriety more than a century ago. See Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850). As times change, the meaning ascribed to particular words changes. In 1990, in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court found that instructions equating reasonable doubt with “substantial doubt” or “grave uncertainty,” when coupled with a reference to moral certainty, could have impermissibly lowered the government’s burden of proof. See id. at 40-41, 111 S.Ct. 328. In 1994, in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court noted that in 1850 “moral certainty meant a state of subjective certitude” but that more modern usage might lead a jury to “understand the phrase to mean something less than the very high level of probability required by the Constitution in criminal cases.” Id. at 12, 14, 114 S.Ct. 1239. The court also held that the moral certainty phrase, if standing alone, was improper, but if put in adequate context with other instructions was not constitutionally improper. See id. at 15-16, 114 S.Ct. 1239. After these decisions came a series of" }, { "docid": "5753853", "title": "", "text": "and frequency in the state court’s decision to reverse based on the same instructions, given by the same judge, we think supports our conclusion that the errors involved in Gaines’ trial are not simply technical failings, but errors of a constitutional dimension. C. Analyzing Cumulative Effect of Instructions We turn next to the cumulative effect that the instructions produce. This line of inquiry is central to determining constitutionality, since as earlier noted, “jury instructions must be viewed in their entirety to ensure that the instructions, read as a whole, correctly convey the reasonable-doubt concept to the jury.” Desimone, 119 F.3d at 227. Even were each and every one of the individual definitions of reasonable doubt to pass constitutional muster, their cumulative effect may violate constitutional due process. This much can be seen from a brief comparison of the Supreme Court’s decisions in Victor, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583, and Cage, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339. In both cases, the Court considered a jury instruction defining a reasonable doubt as a “substantial doubt” and suggesting that the degree of proof required for conviction was proof to a “moral certainty”; and in both cases, the Court also found these phrases problematic. See Victor, 511 U.S. at 7, 16, 18-20, 22, 114 S.Ct. 1239; Cage, 498 U.S. at 40—41, 111 S.Ct. 328. In Victor, the Court upheld the use of these phrases, reasoning that any ambiguities were cured by contextual language that grounded the concept of “moral certainty” in the evidence before the jury and that contrasted “substantial doubt” both with “conjecture” and with an alternative definition using “hesitate to act” language. 511 U.S. at 16, 19-20, 22, 114 S.Ct. 1239. But in Cage, the Court rejected the charge as unconstitutional, relying instead on the close conjunction of these phrases, the added reference to “grave uncertainty,” and the absence of any reference to “evidentiary certainty” or to similar contextual explanations. 498 U.S. at 40-41, 111 S.Ct. 328. The implicit import of these decisions, therefore, is that vague language that in and of itself does not" }, { "docid": "16866209", "title": "", "text": "principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” We now review the legal principles governing Cockerham’s Cage claim. The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In Cage, the Supreme Court held that a reasonable doubt instruction ran afoul of Winship and violated the Due Process Clause because, when read “as a whole,” it “equated a reasonable doubt with a ‘grave uncertainty’ and an ‘actual substantial doubt,’ and stated that what was required was a ‘moral certainty’ that the defendant was guilty.” Id., Ill S.Ct. at 329. The combination of these terms resulted in an instruction authorizing conviction based on a lesser degree of proof than required by the Due Process Clause. In Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991), the Supreme Court clarified that the standard was not whether a reasonable juror “could have interpreted” the instruction unconstitutionally, as stated in Cage, but rather whether there was a reasonable likelihood of unconstitutional interpretation. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 1242, 127 L.Ed.2d 583 (1994), the Court upheld two instructions that contained some, but not all, of the three suspect phrases in Cage. The Court reasoned that the phrases “moral certainty” and “substantial doubt” did not imper-missibly lower the government’s burden of proof because the context of the instructions clarified the meaning of the terms as being congruent with reasonable doubt. The district court found that the reasonable doubt instruction given at Cockerham’s trial was identical to that given in Cage. The State does not contest this finding and, in any event, it is not clearly erroneous. We agree with the district court that if the State’s unexplained denials of relief on the Cage claim were predicated on some other determination of the facts, such determination was unreasonable under" }, { "docid": "23168704", "title": "", "text": "instructions violated the Supreme Court’s holding in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled in part, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), because it lowered the government’s burden below proof beyond a reasonable doubt. We find no error entitling Johnson to relief. In a criminal case, the government must prove each element of a charged offense beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Although a court must in struct the jury that a defendant’s guilt has to be proven beyond a reasonable doubt, the Supreme Court has stated that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). If a trial court does attempt to define reasonable doubt, it must explain the standard correctly, although “the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id. When reviewing the correctness of reasonable-doubt charges, the Supreme Court has phrased the proper constitutional inquiry as “ ‘whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.’ ” Harvell v. Nagle, 58 F.3d 1541, 1542-43 (11th Cir.1995) (quoting Victor, 511 U.S. at 6, 114 S.Ct. at 1243). We consider the instruction as a whole to determine if the instruction misleads the jury as to the government’s burden of proof. See id.; see also Victor, 511 U.S. at 5-6, 114 S.Ct. at 1243 (instructions must be “taken as a whole”); Cage, 498 U.S. at 41, 111 S.Ct. at 329 (explaining that “[i]n construing the instruction, we consider how reasonable jurors could have understood the charge as a whole”). At the close of the evidence at Johnson’s trial, the judge gave the jury a lengthy instruction on reasonable doubt. Johnson contends" }, { "docid": "9795835", "title": "", "text": "the light of the Court’s most recent opinion. See Johnson v. Board of Education, 457 U.S. 52, 53-54, 102 S.Ct. 2223, 2224-25, 72 L.Ed.2d 668 (1982); Smith v. Bounds, 813 F.2d 1299, 1304 (4th Cir.1987). If in due course the Supreme Court reviews this opinion, it will surely turn to its current precedent. We should now do the same. VI In Victor, the Court held that the proper standard for measuring the constitutional validity of a jury instruction is “whether there is a reasonable likelihood” that the jury applied the instruction in an unconstitutional manner. — U.S. at —, 114 S.Ct. at 1243; see also Estelle v. McGuire, 502 U.S. 62, —n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990). Victor and McGuire repudiated the test used by the Court in Cage, “how reasonable jurors could have understood the charge as a whole.” Cage, 498 U.S. at 41, 111 S.Ct. at 329. In Cage, the trial court defined reasonable doubt as follows: This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty. Cage, 498 U.S. at 40, 111 S.Ct. at 329 (citing State v. Cage, 554 So.2d 39, 41 (La.1989) (emphasis supplied by Supreme Court)). The Supreme Court held that given the terms “substantial” and “grave,” together with the reference to “moral certainty,” a reasonable juror “could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” 498 U.S. at 41, 111" }, { "docid": "1667348", "title": "", "text": "presented by Nevius’s second habeas petition. Of the five claims presented by Nevius, the district court rejected three as not meeting the requirements for a successive claim under § 2244(b)(1) and (2). The remaining two claims it rejected on the merits as not meeting the standards for granting habeas relief under § 2254(d)(1), (2), and (e)(1). We conclude that the district court was correct and that none of the claims now presents “a substantial showing of the denial of a constitutional right” as required by § 2253(c)(2) for the issuance of a certificate of appealability. We address the claims one by one. The claim that led us to grant Nevius permission to file a second petition was that the reasonable doubt instruction given at his trial was unconstitutional under the standard later set by the Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). That claim has been entirely undermined by our subsequent decision in Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir.), cert. denied, 525 U.S. 967, 119 S.Ct. 415, 142 L.Ed.2d 337 (1998). There we upheld the constitutionality, under Cage and Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), of a Nevada reasonable doubt instruction identical to the one given at Nevius’s trial. The law of this circuit thus forecloses Nevius’s claim that his reasonable doubt instruction was unconstitutional. Nevius contends that Ramirez should not control his case because Ramirez did not involve a death penalty. Ramirez, however, focused clearly on the words of the challenged instruction, and concluded that there was “no reasonable likelihood that the jury understood the instruction” to lower the government’s burden of proof below the level of reasonable doubt. Ramirez, 136 F.3d at 1214. That is the test that Ramirez derived from Cage and Victor, both of which involved death sentences. Ramirez also recognized that, if there were a reasonable likelihood that the jury understood the instructions to lower the government’s burden below that of reasonable doubt, the writ would have to issue; “there can be no harmless error in this" }, { "docid": "2666433", "title": "", "text": "abiding conviction to a moral certainty’ it impermissibly lessened the government’s burden of proof to establish Appellant’s guilt beyond a reasonable doubt.” As a result, Perry asserts, the instruction runs afoul of the Supreme Court’s decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Perry’s reliance on Cage is misplaced. In Cage, the Supreme Court held that the instruction at issue violated the Constitution because a reasonable juror “could have” interpreted the instruction at issue to permit a finding of guilt without proof of guilt beyond a reasonable doubt. 498 U.S. at 41, 111 S.Ct. 328. Since then, however, in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court clarified that the proper inquiry is not whether the instruction “could have” been unconstitutionally interpreted, but whether there is a reasonable likelihood that the jury did so interpret it, id. at 72 n. 4, 112 S.Ct. 475. The Court later noted that “we have said that ‘proof to a “moral certainty” is an equivalent phrase with “beyond a reasonable doubt.’ ” ” Victor v. Nebraska, 511 U.S. 1, 12, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (quoting Fi delity Mut. Life Ass’n v. Mettler, 185 U.S. 308, 317, 22 S.Ct. 662, 46 L.Ed. 922 (1902)); accord Tyler v. Cain, 533 U.S. 656, 658 n. 1, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). In this case, the court instructed the jury in pertinent part as follows: “A reasonable doubt exists when, after the careful, entire, and impartial consideration of all of the evidence in the case, the jurors do not feel an abiding conviction to a moral certainty that a defendant is guilty of the offense charged.” In light of the foregoing authority, we have previously stated that references to “a moral certainty” and an “abiding conviction” do not mislead a reasonable jury. Austin v. Bell, 126 F.3d 843, 847 (6th Cir.1997) (applying Victor and reiterating “that the ‘abiding conviction’ language, when used in conjunction with ‘moral certainty,’ properly stated the government’s burden of proof’). The jury instruction did" }, { "docid": "23168703", "title": "", "text": "Johnson asserts that these statements would have been useful to impeach Lindsey, because they are inconsistent with Lindsey’s testimony. But none of these witness statements directly contradicted Lindsey’s testimony about Johnson’s admissions. These witness statements do not corroborate Lindsay’s story, and in that sense might have be used to challenge Lindsey’s testimony. But the statements do not actually dispute Lindsey’s testimony regarding Johnson’s admissions, and as noted above Lindsey’s credibility was already amply called into question during cross-examination. Johnson fails to show that the unavailability of the statements for the limited purpose of using them in cross examination was so serious as to undermine confidence in the verdict. Accordingly, having reviewed the record, we find that the allegedly suppressed items — -viewed individually or collectively — were not material, and hence there was no Brady violation entitling Johnson to relief. See Moore, 240 F.3d at 915-16 (no Brady violation entitling petitioner to habeas relief where petitioner failed to show prejudice from the allegedly suppressed items). VII. Johnson’s final claim on appeal is that the jury instructions violated the Supreme Court’s holding in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled in part, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), because it lowered the government’s burden below proof beyond a reasonable doubt. We find no error entitling Johnson to relief. In a criminal case, the government must prove each element of a charged offense beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Although a court must in struct the jury that a defendant’s guilt has to be proven beyond a reasonable doubt, the Supreme Court has stated that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). If a trial court does attempt to define reasonable doubt, it must explain the standard correctly, although “the Constitution does" }, { "docid": "17161088", "title": "", "text": "sufficient to render the instruction unconstitutional.” 511 U.S. at 20, 114 S.Ct. at 1250. Although the Court disapproved of the use of the ambiguous “moral certainty,” the Court noted that, on review, “the moral certainty language cannot be sequestered from its surroundings,” and concluded that the instruction as a whole properly charged the jury on their duty to consider the evidence. 511 U.S. at 16, 114 S.Ct. at 1248. Considered in its entirety, the instruction in Cage appeared to create a downward swing in the prosecution’s burden of proof: the instruction began appropriately with “reasonable” doubt, moved to “grave uncertainty,” and then to “substantial” doubt, and concluded by suggesting that the jury could convict on the basis of a “moral certainty” rather than an evidentiary certainty. The challenged portion of Brown’s jury charge, by contrast, begins and ends with “reasonable” doubt, and indicates clearly that the State must prove guilt beyond a reasonable doubt — with no suggestion that a “moral certainty” might suffice in the absence of evidentiary proof. We also note that, later in the charge, the jury was reminded of the severity of the State’s burden with the admonition that Brown should not be convicted “unless the facts proved by the evidence exclude every reasonable hypothesis of his innocence.” Thus, there is a vast difference between the charge given in the case before us and the charge given in Cage. Furthermore, the standard of appellate review applied by the Court in Cage has been modified by the Court’s decision in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The question, as Estelle explained, is not whether there is a possibility that a juror “could have” applied the instruction in an unconstitutional manner, but whether there is a “reasonable likelihood” that the jury did apply the instruction unconstitutionally. Id. at 61 & n. 4, 112 S.Ct. at 482 & n. 4; Victor, 511 U.S. at 6, 114 S.Ct. at 1243. Given the trial court’s numerous references to “reasonable doubt” and the severity of the State’s evidentiary burden, we conclude that there is no" }, { "docid": "6004859", "title": "", "text": "“real possibility.” We have already concluded that “real possibility” is permissible in United States v. Bustillo, 789 F.2d 1364, 1368 (9th Cir.1986). This case differs only in that there was an objection in the district court, while in Bustillo we reviewed for plain error. We see no reason to limit Bustillo to plain error. We explained in United States v. Newport, 747 F.2d 1307 (9th Cir.1984), that “the term ‘real’ means a doubt which is [ ] authentic, genuine, actual and true instead of its opposite meaning i.e. ‘unreal, apparent, or imaginary’ doubt.” Id. at 1308. The Supreme Court has held that a reasonable doubt is, at a minimum, one based on reason, so “[a] fanciful doubt is not a reasonable doubt.” Victor v. Nebraska, 511 U.S. 1, 17, 114 S.Ct. 1239, 1248, 127 L.Ed.2d 583 (1994). Victor makes that distinction in the context of approving the phrase “not a mere possible doubt.” Id. “[T]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id. at 5, 114 S.Ct. at 1243. The Federal Judicial Center form book instruction used for the challenged passage is the one recommended by Justice Ginsburg in her concurrence in Victor. Id. at 26-27, 114 S.Ct. at 1253-54 (Ginsburg, J., concurring). The trial judge may require a “real possibility” of doubt because “[a] fanciful doubt is not a reasonable doubt.” Id. at 17, 114 S.Ct. at 1248. The phrase “real doubt” does not suffer the infirmity of requiring the jury to have “grave uncertainty,” “substantial doubt,” and a “real tangible substantial basis” for doubt, before they can acquit, as the unconstitutional instruction did in Cage v. Louisiana, 498 U.S. 39, 40, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991). The Federal Judicial Center form has the virtue of using the common phrase “give him the benefit of the doubt.” Most jurors are likely to have spoken that way themselves," }, { "docid": "12409207", "title": "", "text": "also, taken as a whole, so infirm that they rendered the entire trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Henderson v. Kibe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir.1986). If an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly. Estelle, 502 U.S. at 72, 73 n. 4, 112 S.Ct. at 482 n. 4; Boyde, 494 U.S. 370, 380, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990). Austin alleges that the following jury instruction violated his constitutional rights: Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability after such investigation to let the mind rest easily upon the certainty of guilt. Reasonable doubt does not mean a doubt that may arise from possibility. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required and this certainty is required as to every proposition of proof requisite to constitute the offense. (J.A. at 320.) Austin argues that this “reasonable doubt” instruction is similar to the “reasonable doubt” instruction held to be unconstitutional in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). In Cage, the Supreme Court held that the instruction allowed a reasonable juror to find guilt based on a degree of proof below that required by the Constitution because it required a “moral certainty,” rather than an “evidentiary certainty,” that the defendant was guilty, and it suggested that jurors needed an “actual substantial doubt” or a “grave uncertainty,” instead of a “reasonable doubt,” to acquit. Id. at 40-41, 44, 111 S.Ct. at 329-30. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), however, the Supreme Court held that use of the term “moral certainty” does not, of itself, render a “reasonable doubt” instruction unconstitutional. The phrase “moral certainty”" }, { "docid": "23075376", "title": "", "text": "be “error” that is “plain” and that affects “substantial rights,” and even then we have discretion not to correct the error unless it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted). We conclude that the district court’s inadvertent mistake is not reversible error, and certainly not reversible plain error. The question is not whether the court’s unwitting mention of the preponderance of the evidence standard while discussing count 1 is erroneous — every one concedes it is — but whether this single misstatement makes the instruction defective as a whole. See Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Moreover, “the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (citing Estelle v. McGuire, 502 U.S. 62, 72 & n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Gilley argues that the misstatement infected the entire jury instruction and irretrievably prejudiced his conviction on all counts by allowing the jury to find him guilty by less than beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). There is, however, no reasonable likelihood, under a Cage-Victor analysis, that the jury in fact did apply the misstatement and convict Gilley of count 1, much less all counts, by a preponderance of the evidence. Cage and Victor involved a dubious definition of “reasonable doubt” in the general jury instruction on the meaning of reasonable doubt. This situation is much more troublesome than is what happened in this case, a single slip of the tongue in one particular instruction. Moreover, Gilley concedes that the general jury instruction on reasonable doubt, plus all other jury instructions, correctly stated the law. In the nearly identical case of United States v. Musgrave, 483 F.2d 327, 335 (5th" }, { "docid": "2666432", "title": "", "text": "of Criminal Procedure 16(a)(1)(G) provides, in pertinent part, that “[a]t the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial.” In this case, however, the government did not offer Agent Trombitas as an expert, nor did Perry’s trial counsel otherwise challenge Agent Trombitas’s qualifications. Thus, Rule 16 does not apply, and, as a result, the government was not obligated to provide Perry with a written summary of Agent Trombitas’s testimony. The balance of Perry’s arguments are more properly directed to attacking the district court’s ruling with regard to the admission of evidence related to the Bank One robbery. That issue was fully addressed above, and, accordingly, the district court committed no error in allowing Agent Trombitas to testify. V. Perry next argues that the district court improperly instructed the jury on the government’s burden of proof. Specifically, Perry argues “[bjecause the district court required only ‘an abiding conviction to a moral certainty’ it impermissibly lessened the government’s burden of proof to establish Appellant’s guilt beyond a reasonable doubt.” As a result, Perry asserts, the instruction runs afoul of the Supreme Court’s decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Perry’s reliance on Cage is misplaced. In Cage, the Supreme Court held that the instruction at issue violated the Constitution because a reasonable juror “could have” interpreted the instruction at issue to permit a finding of guilt without proof of guilt beyond a reasonable doubt. 498 U.S. at 41, 111 S.Ct. 328. Since then, however, in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court clarified that the proper inquiry is not whether the instruction “could have” been unconstitutionally interpreted, but whether there is a reasonable likelihood that the jury did so interpret it, id. at 72 n. 4, 112 S.Ct. 475. The Court later noted that “we have said that ‘proof to a “moral certainty” is an" }, { "docid": "23591211", "title": "", "text": "jury of the law, or misleads the jury as to a correct legal standard. Anderson, 17 F.3d at 556; see also, Norfleet v. Isthmian Lines, Inc., 355 F.2d 359, 362-63 (2d Cir. 1966) (jury charge must show no tendency to confuse or mislead jury as to applicable principles of law). Here, we look specifically at the standard attaching to judicial review of reasonable doubt jury instructions, which has fluctuated somewhat over the last 20 years. See United States v. Birbal, 62 F.3d 456, 461-63 (1995). The Cage Court proclaimed that the standard was a search for “how reasonable jurors could have understood the charge as a whole.” 498 U.S. at 41, 111 S.Ct. at 330 (emphasis added). In Boyde v. California, 494 U.S. 370, 378-80, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990), the Court noted that numerous standards were in use by it and lower courts of appeals, and adopted a new standard — whether there is a “reasonable likelihood” that the jury misunderstood and unconstitutionally applied the instruction. Boyde explained that under this reasonable likelihood standard “a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction,” although the standard requires more than “a possibility of such an inhibition.” Id. at 380, 110 S.Ct. at 1198. This standard was reiterated by the Court in Estelle v. McGuire, 502 U.S. 62, 72-73 n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991) (expressly overturning the Cage standard and embracing Boyde), and in Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Although the “reasonable likelihood” standard bears a surface resemblance to “harmless error” review in that it requires inquiry into the effect of the erroneous instruction upon the jury, Justice Scalia stated for the Court in Sullivan v. Louisiana, 508 U.S. 275, 278-82, 113 S.Ct. 2078, 2081-83, 124 L.Ed.2d 182 (1993), that “harmless error” review is not pertinent to judicial scrutiny of an erroneous reasonable doubt instruction, because error in this essential instruction is per se harmful and must result in" }, { "docid": "23591212", "title": "", "text": "reasonable likelihood standard “a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction,” although the standard requires more than “a possibility of such an inhibition.” Id. at 380, 110 S.Ct. at 1198. This standard was reiterated by the Court in Estelle v. McGuire, 502 U.S. 62, 72-73 n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991) (expressly overturning the Cage standard and embracing Boyde), and in Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Although the “reasonable likelihood” standard bears a surface resemblance to “harmless error” review in that it requires inquiry into the effect of the erroneous instruction upon the jury, Justice Scalia stated for the Court in Sullivan v. Louisiana, 508 U.S. 275, 278-82, 113 S.Ct. 2078, 2081-83, 124 L.Ed.2d 182 (1993), that “harmless error” review is not pertinent to judicial scrutiny of an erroneous reasonable doubt instruction, because error in this essential instruction is per se harmful and must result in an overturning of conviction. In other words, then, we do not engage in an inquiry of harmless error review such as was enunciated in Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), which looked at the case in its entirety to analyze the effect of the error on the jury’s verdict. Rather, we assess only the charge, taken as a whole, in order to determine whether there is a reasonable likelihood that the jury misinterpreted the reasonable doubt instruction. Cf. United States v. Birbal, 62 F.3d 456, 461-62 (2d Cir.1995) (under plain error standard, question on appeal is “whether, taking the jury instructions as a whole, there is a ‘reasonable likelihood’ that the jury understood the instructions to allow conviction based on insufficient proof’). Here, therefore, we need only decide whether there is a reasonable likelihood that the jury misunderstood the reasonable doubt standard. We first examine the jurisprudence of our sister courts on the matter of similar charges. We have found only one circuit court opinion wholeheartedly" }, { "docid": "1046973", "title": "", "text": "Petitioner’s Memorandum of Law, at 151 (emphasis added). Thomas contends that the trial court’s definition of “reasonable doubt,” and the-“restrain from acting” formulation, in particular, diminished the Commonwealth’s burden of proof beyond what is constitutionally required. The Supreme Court has confronted this issue on several occasions, consistently holding that the concept of reasonable doubt is amenable to a host of permissible definitions. [S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (citations omitted). Only in one case — Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam)-has the Supreme Court rejected as unconstitutional a definition of “reasonable doubt,” and there the definition in the jury instructions contained several phrases (“such doubt as would give rise to grave uncertainty,” “actual substantial doubt,” and “moral certainty,” id. at 40, 111 S.Ct. 328) that, when taken together, “could have [been] interpreted ... to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause,” id. at 41, 111 S.Ct. 328. Almost thirty years ago, the Pennsylvania Supreme Court directly addressed this issue, holding specifically that as a matter of state law, the use of the word “restrain” rather than “hesitate” did not constitute an inappropriate instruction. See Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626, 634 (1976). Since Cage, the Supreme Court has clarified that in the case of challenges to a reasonable doubt instruction, “the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” Victor, 511 U.S. at 6, 114 S.Ct. 1239 (emphasis in original); see also Tyler v. Cain," }, { "docid": "1361240", "title": "", "text": "matters relating to your own affairs, then you have no reasonable doubt. The rule as to reasonable doubt extends to every element of the offense although each particular fact advanced by the prosecution which does not constitute an element, need not be established beyond reasonable doubt. However, if, on the whole evidence, you are satisfied beyond reasonable doubt of the truth of each and every element, you should find the accused guilty. As members of the court you must bear in mind that only matters properly before the court as a whole may be considered. Id. at 889 (emphasis added). . Id. at 41, 111 S.Ct. 328. \"In a subsequent case,” the Court clarified that “the proper inquiry is not whether the instruction ‘could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” Victor, 511 U.S. at 6, 114 S.Ct. 1239 (citing Estelle v. McGuire, 502 U.S. 62, 72 & n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). The new standard did not, however, modify Cage's holding as to the unconstitutionality of the jury instruction in question. See Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (holding, two years after the adoption of the Estelle standard, that Cage instruction was unconstitutional and not subject to harmless error analysis). . 511 U.S. at 20-21, 114 S.Ct. 1239. We note that the \"pause and hesitate” language is not without its critics. Id. at 24, 114 S.Ct. 1239 (noting that the instruction began by defining reasonable doubt as \"such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon”) (Ginsburg, J., concurring). In her concurrence in Victor, Justice Ginsburg identified a major concern with the widely-accepted \"hesitate to act” language, quoting a judicial report to the Judicial Conference of the United States: \"pTjhe analogy it uses seems misplaced. In the decisions people make in the most important" } ]

[ { "docid": "12789012", "title": "", "text": "owes persons in the apprenticeship program and the duty due persons whom it represents in collective bargaining. Sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. §§ 158(b), 159(a), empower a union that represents a majority of the employees in an appropriate bargaining unit to act as the exclusive representative of all the employees in collective bargaining. Because the union acts as agent of all the employees, it owes each of them, whether or not a union member, the duty of fair representation. Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973); see also In re Carter, 618 F.2d 1093 (5th Cir. 1980). The scope of this duty was outlined in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842, 850 (1967). The Supreme Court there held that, when a union acts as the collective bargaining agent of its members, it is obliged “to secure the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. at 910, 17 L.Ed. at 850. The existence of the DFR, however, does not permit federal court scrutiny of all of a union’s internal affairs. Because the DFR is imposed on the union as a result of its position as exclusive bargaining representative, it applies only to union conduct arising from the union’s position as representative. Thus, in Smith v. Local No. 25, Sheet Metal Workers, 500 F.2d 741, 746 (5th Cir. 1974), we stated that the union owes “the duty to represent fairly the interest of each employee in the unit in dealings with the employer.” (Emphasis supplied.) Therefore, union conduct that affects only an individual’s relationship within the union structure is not circumscribed by the constraints of the DFR. Subject to the provisions of its constitution and bylaws and the constraints imposed by statute, the union is necessarily invested with broad discretion to make internal union decisions in a manner the leadership considers beneficial both to the union membership at-large and to" } ]

[ { "docid": "23649681", "title": "", "text": "this duty. Vaca v. Sipes, 1967, 386 U.S. 171, 176-189, 87 S.Ct. 903, 909-916, 17 L.Ed.2d 842. Under the fair representation doctrine, “the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct.” Id., 386 U.S. at 177, 87 S.Ct. at 910. Thus, the duty is defined by three distinct standards of conduct; a violation occurs “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id., 386 U.S. at 190, 87 S.Ct. at 916; see also Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 4th Cir. 1972, 469 F.2d 181. An employee’s action directly against his employer for breach of the collective bargaining agreement concluded between the employer and the union lies under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185. Smith v. Evening News Association, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L. Ed.2d 246. The employer may defend such a suit on the grounds that the employee has failed to exhaust the remedies available to him'under the collective agreement, but this defense is not available if, as is true in this case, only the union has power to press the grievance beyond the initial stages of the contractual grievance procedure and if the union’s wrongful refusal to process his grievance prevents him from exhausting his contractual remedies. Vaca v. Sipes, supra, 386 U.S. at 185, 87 S.Ct. at 914. Thus, a union’s breach of its duty of fair representation may open the way not only to a suit against itself, but also against the employer. When both the employer and the union are sued, as in this case, the issue of the union’s breach of its duty of fair representation may be equally important for both defendants. The main thrust of the instant appeal by Ford and the Union concerns the district court’s instructions" }, { "docid": "11705465", "title": "", "text": "[our] task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ” Hydrick v. Hunter, 466 F.3d 676, 686 (9th Cir.2006) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (alterations in Hydrick)). DISCUSSION “[B]eeause the national labor policy vested unions with power to order the relations of employees with their employer ... this Court found it necessary to fashion the duty of fair representation.” NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). “Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). As Justice White explained in Vaca: The statutory duty of fair representation was developed ... in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 [(1944)], and was soon extended to unions certified under the [National Labor Relations Act]. Id. (additional citations omitted). To protect the interests of minority members of a bargaining unit, the duty of fair representation “has stood as a bulwark to prevent arbitrary union conduct.” Id. at 182, 87 S.Ct. 903. Because the duty arises out of “the union’s exclusive power to represent all employees in a particular bargaining unit,” Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 87, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989), there are two natural limitations to its scope. First, the duty of fair representation “does not extend to persons who are not employees in the bargaining unit.” Karo v. San Diego Symphony Orchestra Ass’n, 762 F.2d 819, 821" }, { "docid": "18174597", "title": "", "text": "Plaintiffs’ suit against the Union for unfair representation? A review of the complaint indicates it is somewhat similar to that described in Liotta, 629 F.2d at 905-06. However, here, Plaintiffs request damages against both Sea-Land and the Union, have sued the Union directly and have appealed as to both Sea-Land and the Union. This presents a different posture than that presented in Mitchell, where only the employer appealed the decision to the Supreme Court, or Liotta, where the plaintiff employee appealed only from the decision as to the employer. This posture requires very careful scrutiny. There is no doubt that an action against a Union for breach of duty of fair representation need not be combined with a § 301 action against an employer. The duty of fair representation is an independent statutory duty that arises from the union’s position as exclusive bargaining agent under sections 8 and 9 of the labor laws. Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048 (1953). A union has a duty to represent fairly all the employees in a bargaining unit because of the rights granted the union under sections 8(b) and 9(a) of the federal labor laws, 29 U.S.C. §§ 158(b), 159(a) (1976). Vaca v. Sipes, 386 U.S. [171] at 177, 87 S.Ct. [903] at 909; [17 L.Ed.2d 842] Smith v. Local 25, Sheet Metal Workers Int'l. Ass’n, 500 F.2d [741] at 746. These sections are a part of an “Act of Congress regulating commerce” over which the district courts have original jurisdiction under 28 U.S.C. § 1337 (1976). See Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. at 274, 91 S.Ct. at 1909 [29 L.Ed.2d 473]; Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d at 748-49. In Re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980). cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). This independent jurisdictional basis was explicitly discussed by Justices Stewart and Stevens in Mitchell, even though the union was not a party to the appeal in that" }, { "docid": "15655890", "title": "", "text": "of fair representation to the employees, and granted the international’s motion for summary judgment. We reverse that portion of the district court’s holding. In return for the broad authority granted a union as the members’ exclusive collective bargaining agent, the union must “serve the interests of all members without hostility or discrimination toward any, . exercise its discretion with complete good faith and honesty, and . . . avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citing Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964)). The union’s duty is violated “only when [its] conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. See also Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1125 (5th Cir. 1980); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1979). After concluding that the local had breached its duty of fair representation to plaintiffs (a finding the local has not appealed), the district court considered the international’s liability: Although defendant International would appear to be equally at fault — having exceeded its own authority in ordering the signing of the contract — plaintiff has not asserted and the Court is unable to find any federally cognizable cause of action. Not being an exclusive bargaining agent, the International owes no duty of fair representation. . (citations omitted). Even though the international was not the employees’ exclusive bargaining agent, the question is whether the international nevertheless owed a duty to the local’s membership not to cause the local to breach its duty of fair representation. With respect to the local, the district court noted, “The facts of this ease present a paradigm breach of this duty” of fair representation. While the international was not formally designated the employees’ bargaining agent, the international president’s directive had the effect of supplanting the authority vested in the local’s business manager to assent to agreements on the membership’s behalf. In" }, { "docid": "12547670", "title": "", "text": "call unlisted witnesses; claims of relevance and lack of prejudice are insufficient. Here, no such showing was made. Thus, the district court did not abuse its discretion in excluding plaintiffs’ witnesses, but rather properly applied the rules of court. IV In granting the union defendants’ motion to dismiss under Federal Rule of Civil Procedure 41(b), the district court ruled, inter alia, that Ackley and Cole had failed to show a right to relief under section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185 (1988), for a breach of the union’s duty of fair representation. We review ultimate findings made pursuant to a Rule 41(b) motion de novo. Johnson, 756 F.2d at 1465. We note, first, that in their briefs on appeal Ackley and Cole barely succeeded in raising the duty of fair representation issue, if in fact they did succeed. Nevertheless, because it is clear, both from their discussion of the evidentiary rulings and from their objections to the factual findings, that appellants intended to preserve this point before us, we will overlook the obvious procedural inadequacies in their brief. The statutory authority to represent union members in a collective bargaining process includes an obligation “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citation omitted). Ackley and Cole contend that WCT and the local union leadership breached this obligation by failing to disclose changes in the nonmonetary provisions of the proposed collective bargaining agreement to the membership. Because Ackley and Cole failed to establish the requisite elements of such a claim as defined in Acri v. International Ass’n of Machinists, 781 F.2d 1393, 1397 (9th Cir.), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986), the district court’s grant of dismissal was proper. The duty of fair representation extends to the conduct of union officials during the negotiation of a collective bargaining agreement. Acri, 781 F.2d at 1397. Union" }, { "docid": "5506373", "title": "", "text": "hidden from the membership breached the union’s duty under the International constitution and union bylaws. 2. It bears repetition that the duty of fair representation is based on the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a), which creates a union’s exclusive authority to represent all employees in a bargaining unit. Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 563, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990); Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967). Its origins are strictly statutory: Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910. In Karo ¶. San Diego Symphony Orchestra Ass’n, 762 F.2d 819, 821 (9th Cir.1985), this court held that a plaintiff must either be a member of a collective bargaining unit or a third party beneficiary to that contract in order to have standing to bring a suit for breach of the duty of fair representation against a union. This standing requirement attaches only to the statutory duty of fair representation that arises under the NLRA. In Wooddell, — U.S. at-, 112 S.Ct. at 501, the United States Supreme Court held that a union member may bring a section 301 breach of contract claim based on a local union’s violation of its constitution. As stated earlier, this contract theory is in accord with this court’s practice as initially set forth in Kinney, 669 F.2d at 1229 (“The law in this circuit had been that an individual member or employee could sue his or her union for breach of a union constitution under § 185(a).”). Under this theory, the individual has standing if he or she is a member, or employee of the union whose actions are challenged, but the individual need not be a member of a particular bargaining" }, { "docid": "23518955", "title": "", "text": "with the recognition that Appellants’ complaint asserted claims against both the union and the company. The complaint against the union is predicated on the “statutory duty of fair representation.” See Vaca, 386 U.S. at 177, 87 S.Ct. at 910. The duty of fair representation is inferred from the union’s exclusive authority under the National Labor Relations Act, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit and “to act fairly when dealing with an employer on behalf of a member.” Moore v. Local Union 569 of the Int’l Bhd. of Elec. Workers, 989 F.2d 1534, 1541 (9th Cir.1993), cert. denied — U.S. -, 114 S.Ct. 1066, 127 L.Ed.2d 385 (1994). The complaint against Moore, the employer, is based on Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), which authorizes suits between employers and labor organizations for contract violations. The parties agree that the action against Moore can succeed only if “the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Vaco, 386 U.S. at 186, 87 S.Ct. at 914; see also Johnson v. United States Postal Serv., 756 F.2d 1461, 1467 (9th Cir.1985). Our inquiry, therefore, is limited to whether Local 404 breached its duty of fair representation owed to the Appellants. In Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, the Court defined the duty of fair representation: [T]he exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Regarding the scope of the duty, the Court stated: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Id. at 191, 87" }, { "docid": "13456785", "title": "", "text": "the exclusive bargaining agent under the NLRA for the collective bargaining unit of which plaintiffs (and the putative intervenors) were members, and the subsequent briefs and motions of all parties, here and below, in fact treat the Union as such. The duty which the Union allegedly breached is described in the original petition as “a duty” which the Union had “[a]s the bargaining agent for Plaintiffs” (emphasis added). No other source of duty is alleged in the original petition. The nature of the relationship between a collective bargaining agent and the employees in the bargaining unit is well established: “Sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. §§ 158(b), 159(a), empower a union that represents a majority of the employees in an appropriate bargaining unit to act as the exclusive representation of all the employees in collective bargaining. Because the union acts as agent of all the employees, it owes each of them, whether or not a union member, the duty of fair representation.... The scope of this duty was outlined in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842, 850 (1967). The Supreme Court there held that, when a union acts as the collective bargaining agent of its members, it is obliged ‘to secure the in terests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct.’ Id. at 177, 87 S.Ct. at 910, 17 L.Ed. at 850.” Bass v. International Broth. of Boilermakers, 630 F.2d 1058, 1062 (5th Cir.1980). See also In re Carter, 618 F.2d 1093, 1104 (5th Cir.1980), cert. denied sub nom. Sheet Metal Workers’ Intern. Ass’n v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). This duty of fair representation generally governs a union’s conduct vis-a-vis the bargaining unit members when the union is representing them. See Swatts v. United Steelworkers of America, 808 F.2d 1221, 1224 (7th Cir.1986) (applying NLRA duty of fair representation to determine whether defendant union liable for failure to advise plaintiffs, replaced striking" }, { "docid": "5620457", "title": "", "text": "200 F.3d 661, 663 (9th Cir.2000). We will not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Williamson, 208 F.3d at 1149. Ill The duty of fair representation arises from a union’s statutory role as the exclusive bargaining representative for a unit of employees. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Under the RLA, employees subordinate their interests to the collective interest of all employees in the bargaining unit, so that the union representing that unit may achieve a better collective bargain with the employer than each employee could obtain alone. See id. at 182, 87 S.Ct. 903. In ceding their interests to the union, the employees forego some individual rights against the employer. See id. The duty of fair representation was created as a check on the union “to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Id. “Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. 903. The scope of the duty of fair representation is generally coextensive with the scope of the union’s statutory authority as the exclusive bargaining agent. “A union’s duty of fair representation ... does not extend to persons who are not employees in the bargaining unit.” Karo v. San Diego Symphony Orchestra Ass’n, 762 F.2d 819, 821 (9th Cir.1985). Conversely, “[a] labor organization that is not the exclusive representative of a bargaining unit ... owes no duty of fair representation to the members of the unit.” Dycus v. NLRB, 615 F.2d 820, 827 (9th Cir.1980). The APFA was not the exclusive bargaining agent for the Reno flight attendants when it negotiated the seniority agreement with American. The workforces of two" }, { "docid": "23648239", "title": "", "text": "a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, 386 U.S. at 182, 87 S.Ct. at 913. In order to meet its purpose, the scope of the duty of fair representation is in some ways very broad. The responsibility fairly to represent employees is equal in scope to the union’s broad authority in the negotiation and administration of the collective bargaining agreement. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Thus the duty attaches to all stages of the negotiation and administration process and is owed to all employees within the unit represented. However, because of the need to balance the individual interests of employees with their collective interests, the duty of fair representation must not be construed to subvert the basic purposes of organized labor by inhibiting union representation of collective interests. The Supreme Court has stated that in the negotiation process, “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, 345 U.S. at 338, 73 S.Ct. at 686. The standard by which to measure union conduct was further defined in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In the administration of the collective bargaining agreement, the union has “a statutory obligation to serve the interests of all members [of a designated unit] without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. at 910. See also King v. Space Carriers, Inc., 608 F.2d 283 at 286-287 (8th Cir. 1979). The Fourth Circuit Court of Appeals clearly articulated the import of Vaca in Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972): A union must conform its behavior to each of" }, { "docid": "18174598", "title": "", "text": "to represent fairly all the employees in a bargaining unit because of the rights granted the union under sections 8(b) and 9(a) of the federal labor laws, 29 U.S.C. §§ 158(b), 159(a) (1976). Vaca v. Sipes, 386 U.S. [171] at 177, 87 S.Ct. [903] at 909; [17 L.Ed.2d 842] Smith v. Local 25, Sheet Metal Workers Int'l. Ass’n, 500 F.2d [741] at 746. These sections are a part of an “Act of Congress regulating commerce” over which the district courts have original jurisdiction under 28 U.S.C. § 1337 (1976). See Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. at 274, 91 S.Ct. at 1909 [29 L.Ed.2d 473]; Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d at 748-49. In Re Carter, 618 F.2d 1093, 1104 (5th Cir. 1980). cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). This independent jurisdictional basis was explicitly discussed by Justices Stewart and Stevens in Mitchell, even though the union was not a party to the appeal in that case. United Parcel Service, Inc. v. Mitchell, 451 U.S. at 67 n.2, 101 S.Ct. at 1566 n.2, (Stewart J., concurring in the judgment) (“The Court has recognized on numerous occasions that ‘[t]he duty of fair representation is .. . implicit in the National Labor Relations Act.’ See, e.g., Electrical Workers v. Foust, 442 U.S. 42, 46, n.8, 99 S.Ct. 2121, 2125, n.8, 60 L.Ed.2d 698.”). Justice Stewart further characterized these combination actions as “an amalgam of § 301 ... and the NLRA,” id. at 1566, stating: The respondent here has two claims each with its own discrete jurisdictional basis. The contract claim against the employer is based on § 301, but the duty of fair representation is derived from the NLRA [29 U.S.C. §§ 158(b), 159(a)]. Yet the two claims are inextricably interdependent. “To prevail against either the company or the union, . .. [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the union.” Hines v. Anchor Motor" }, { "docid": "13456786", "title": "", "text": "in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842, 850 (1967). The Supreme Court there held that, when a union acts as the collective bargaining agent of its members, it is obliged ‘to secure the in terests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct.’ Id. at 177, 87 S.Ct. at 910, 17 L.Ed. at 850.” Bass v. International Broth. of Boilermakers, 630 F.2d 1058, 1062 (5th Cir.1980). See also In re Carter, 618 F.2d 1093, 1104 (5th Cir.1980), cert. denied sub nom. Sheet Metal Workers’ Intern. Ass’n v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). This duty of fair representation generally governs a union’s conduct vis-a-vis the bargaining unit members when the union is representing them. See Swatts v. United Steelworkers of America, 808 F.2d 1221, 1224 (7th Cir.1986) (applying NLRA duty of fair representation to determine whether defendant union liable for failure to advise plaintiffs, replaced striking unit employees, that employer could replace them); Acri v. Intern. Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1397 (9th Cir.1986), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986) (applying NLRA duty of fair representation to determine whether defendant union liable to plaintiffs, former unit employees of closed plant, for misrepresenting to them that proposed collective bargaining contract with employer, which employees later ratified, removed previous limits on severance pay); Anderson v. United Paperworkers Intern. Union, AFL-CIO, 641 F.2d 574, 576-78 (8th Cir.1981) (applying NLRA duty of fair representation to determine defendant union’s liability in suit by former employees of employer which became bankrupt where union’s misrepresentation that severance pay called for in proposed collective bargaining agreement was secured by “a special security fund” allegedly induced employees to ratify the agreement). In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Court further held that this federal duty of fair representation preempted state substantive law (though it did not preclude state court jurisdiction). Id. 87" }, { "docid": "9803444", "title": "", "text": "was preempted by federal labor law and barred by the applicable six-month statute of limitations. Where a plaintiffs allegations fall within the scope of the duty of fair representation, federal labor law governs and ordinarily preempts any state-law claims based on those allegations. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967); BIW Deceived v. Local S6, Indus. Union of Marine and Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir.1997); Richardson v. United Steelworkers, 864 F.2d 1162, 1170 (5th Cir.1989). Although Thomas framed his state law claims under state wrongful discharge and civil conspiracy theories, those claims against NALC actually amount to a claim for breach of the duty of fair representation. Thomas’s wrongful discharge and civil conspiracy claims against NALC are premised on the notion that NALC wrongfully agreed with the Postal Service to discharge Thomas because of his religious beliefs, and that the discharge was in violation of Kansas public policy protecting the free exercise of religion. Under federal labor law, a union has a duty to represent fairly all employees for whom it serves as a bargaining agent, and it may be liable for breach of the duty of fair representation when its conduct “toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190, 87 S.Ct. 903. The duty of fair representation requires NALC “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. 903. We agree with the district court that this duty “would certainly encompass the alleged actions of the Union of ‘act[ing] in concert [with the Postal Service] to discriminate against plaintiff due to his religious belief in observing the Sabbath’ and ‘agreeing] that plaintiff should be discharged.’ ” Thomas v. National Ass’n of Letter Carriers, 40 F.Supp.2d 1244, 1247 (quoting Thomas’s Petition at ¶¶ 7 & 8). Thomas argues that even if his claims amount to a breach of the duty of fair" }, { "docid": "149657", "title": "", "text": "grievance adjustment, or contract administration, a union’s duty of fair representation under § 9(a) of the Act, 29 U.S.C. § 159, prohibits such expenditures with agency fees collected from dissenting employees. Judge Mur-naghan’s view does not withstand close scrutiny. The duty of fair representation is a judicial doctrine derived from the statutory duty of representatives designated or selected for the purposes of collective bargaining to “be the exclusive representatives of all of the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ-ment____” § 9(a) (emphasis added). The doctrine was first formulated with respect to the Railway Labor Act, Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), and it was extended to the National Labor Relations Act in Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). As described in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967): Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. As the cases demonstrate, the doctrine is generally invoked to redress discrimina-tions by a union on the basis of race, because of animosity toward a member of the bargaining unit, in short, because of any irrational, unequal, unfair treatment of a member of the bargaining unit. It has been held that the doctrine is inapplicable to internal union matters that do not involve the employer such as the expenditure of dues. See Price v. International Union, 795 F.2d 1128 (2 Cir., 1986). It hardly seems applicable where the union’s challenged expenditures were made equally on behalf of all members of the collective bargaining unit, dues paying union members and agency-fee paying nonunion members alike. Absent proof that a union acted arbitrarily, discriminatorily, or in bad faith in" }, { "docid": "13456787", "title": "", "text": "unit employees, that employer could replace them); Acri v. Intern. Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1397 (9th Cir.1986), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986) (applying NLRA duty of fair representation to determine whether defendant union liable to plaintiffs, former unit employees of closed plant, for misrepresenting to them that proposed collective bargaining contract with employer, which employees later ratified, removed previous limits on severance pay); Anderson v. United Paperworkers Intern. Union, AFL-CIO, 641 F.2d 574, 576-78 (8th Cir.1981) (applying NLRA duty of fair representation to determine defendant union’s liability in suit by former employees of employer which became bankrupt where union’s misrepresentation that severance pay called for in proposed collective bargaining agreement was secured by “a special security fund” allegedly induced employees to ratify the agreement). In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Court further held that this federal duty of fair representation preempted state substantive law (though it did not preclude state court jurisdiction). Id. 87 S.Ct. at 916-18. As the Court stated: plaintiff’s “complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action.” Id. at 910. The Court explained that this uniform federal standard struck the proper balance between the union’s need for discretion when acting as the representative of all the bargaining unit members and the individual’s right to be treated fairly. Id. at 918. Because the plaintiffs in this case alleged that the Union breached a duty that arose from its status as their exclusive collective bargaining agent under the NLRA, Vaca requires that this duty be defined by federal law. “It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” Amalgamated Ass’n of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473 (1971). We thus find no error in the district court’s characterization of plaintiffs’ claims as NLRA duty of fair representation" }, { "docid": "23648240", "title": "", "text": "statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, 345 U.S. at 338, 73 S.Ct. at 686. The standard by which to measure union conduct was further defined in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In the administration of the collective bargaining agreement, the union has “a statutory obligation to serve the interests of all members [of a designated unit] without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Id. at 177, 87 S.Ct. at 910. See also King v. Space Carriers, Inc., 608 F.2d 283 at 286-287 (8th Cir. 1979). The Fourth Circuit Court of Appeals clearly articulated the import of Vaca in Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972): A union must conform its behavior to each of these three separate standards. First, it must treat fractions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action. ****** * * * Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. IV. Applying this standard to the union’s conduct in processing the grievances challenging plaintiffs’ promotions, we find that sufficient evidence existed for the jury to conclude that the union exceeded the permissible range of reasonableness with regard to its representation of plaintiffs. There can be no question that the scope of the duty of fair representation encompasses plaintiffs’ interests in this situation." }, { "docid": "12547671", "title": "", "text": "overlook the obvious procedural inadequacies in their brief. The statutory authority to represent union members in a collective bargaining process includes an obligation “to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citation omitted). Ackley and Cole contend that WCT and the local union leadership breached this obligation by failing to disclose changes in the nonmonetary provisions of the proposed collective bargaining agreement to the membership. Because Ackley and Cole failed to establish the requisite elements of such a claim as defined in Acri v. International Ass’n of Machinists, 781 F.2d 1393, 1397 (9th Cir.), cert. denied, 479 U.S. 816, 107 S.Ct. 73, 93 L.Ed.2d 29 (1986), the district court’s grant of dismissal was proper. The duty of fair representation extends to the conduct of union officials during the negotiation of a collective bargaining agreement. Acri, 781 F.2d at 1397. Union members may maintain an action for breach of the duty of fair representation based on misrepresentations made by union leaders during the ratification process. Id. For purposes of the case before us, we assume arguendo that such an action can also be brought in the event of a failure to disclose information material to the exercise of an informed vote. However, to prevail in a misrepresentation case — and thus in a nondisclosure case — plaintiffs must demonstrate “a causal relationship between the alleged misrepresentations and their injury.” Id. They must show that (1) absent the misrepresentations, the outcome of the ratification vote would have been different; and that (2) had it been different, the company would have acceded to the union’s demands. Id. The Acri test for causality, and particularly the second prong, is difficult to satisfy, and rightly so. Generally, the union’s internal election and rulemaking processes are the proper vehicle, at least initially, for addressing members’ complaints regarding the adequacy of union representation during the bargaining process. Acri, 781 F.2d at 1399-1400" }, { "docid": "15655889", "title": "", "text": "the local breached its duty of fair representation under these facts. We affirm the award of nominal damages and costs against the local. The district court also held that plaintiffs were not entitled to punitive damages under the local’s breach of its duty of fair representation. After the district court rendered its decision, but before oral argument in this case, the Supreme Court held improper an award of punitive damages for a union’s breach of duty of fair representation in processing an employee’s grievance. IBEW v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979). Although Foust involved a claim under the Railway Labor Act, the decision is equally applicable to a case like the present one arising under the National Labor Relations Act. See 442 U.S. at 46 n.8, 99 S.Ct. at 2125 n.8; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). Accordingly, the district court’s denial of punitive damages is affirmed. Fair Representation: International The district court held that the international owed no duty of fair representation to the employees, and granted the international’s motion for summary judgment. We reverse that portion of the district court’s holding. In return for the broad authority granted a union as the members’ exclusive collective bargaining agent, the union must “serve the interests of all members without hostility or discrimination toward any, . exercise its discretion with complete good faith and honesty, and . . . avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967) (citing Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964)). The union’s duty is violated “only when [its] conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. See also Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1125 (5th Cir. 1980); Cox v. C. H. Masland & Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1979). After concluding that the local had breached its duty" }, { "docid": "23313234", "title": "", "text": "policy, 29 U.S.C. § 151, the statutory plan permits a majority of the employees in a unit to elect a union to serve as their collective bargaining agent. 29 U.S.C. § 159. The union represents all employees, not only its members, and is their exclusive agent. Id. Because the very nature of collective bargaining precludes bargaining on their own behalf by individual employees, the union has a corollary and inescapable duty fairly to represent all of the employees in the bargaining unit not only in negotiating for an agreement, but also in enforcing the provisions of that agreement throughout its term. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909-10, 17 L.Ed.2d 842; Humphrey v. Moore, 1964, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370, 367. This duty requires the union to “serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, 17 L.Ed.2d at 850. The duty is not, however, a ministerial one of satisfying each employee’s demands at all costs; the union is the representative but not the servant of the employees. It not only may, but should, exercise judgment and discretion in its representative capacity. Its duty is violated “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916, 17 L.Ed.2d at 857. Cox asserts two claims, one against Mas-land for breach of the collective bargaining agreement, and the other against the union for breach of its duty of fair representation. He seeks only monetary damages from each defendant, not arbitration or judicially-decreed reinstatement, remedies equitable in nature because they are in effect specific performance. See C. Wright & A. Miller, Federal Practice and Procedure § 2309 (1971). The monetary recompense for which he prays is the traditional common law remedy. In Vaca the Court stated that an employee is not restricted in such circumstances to" }, { "docid": "23649680", "title": "", "text": "amounts found by the jury, equally between them. Further, the court ordered Ford to reinstate plaintiff in his painter-glazier job with a skilled trades date-of-entry prior to that of Morrow, and enjoined Ford and the Union from discriminating against Sander-son in respect to seniority or other conditions of employment. The award of future damages against each defendant was suspended on the condition that Ford reinstate Sanderson as required in the court’s order. II. The Issues Authoritative precedents have made clear the legal contours of the actions Sanderson has brought against his union and his employer. The National Labor Relations Act § 9(a), 29 U.S.C.A. § 159(a), confers on a duly elected union authority to act as exclusive collective bargaining representative for an appropriate bargaining unit, and N.L.R.A. § 8(b), 29 U.S.C.A. § 158(b), imposes on the union the corresponding duty to represent fairly the interest of each employee in the unit in dealings with the employer. The federal courts have jurisdiction to adjudicate a suit by an individual employee against the union for breach of this duty. Vaca v. Sipes, 1967, 386 U.S. 171, 176-189, 87 S.Ct. 903, 909-916, 17 L.Ed.2d 842. Under the fair representation doctrine, “the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and avoid arbitrary conduct.” Id., 386 U.S. at 177, 87 S.Ct. at 910. Thus, the duty is defined by three distinct standards of conduct; a violation occurs “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Id., 386 U.S. at 190, 87 S.Ct. at 916; see also Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 4th Cir. 1972, 469 F.2d 181. An employee’s action directly against his employer for breach of the collective bargaining agreement concluded between the employer and the union lies under the Labor Management Relations Act § 301, 29 U.S.C.A. § 185. Smith" } ]

[ { "docid": "1065848", "title": "", "text": "utilized only where there are no other adequate remedies, particularly where the entity sought to be consolidated is not itself already a debtor in a bankruptcy case. Until the Supreme Court or the Sixth Circuit Court of Appeals enunciates a standard to determine when the elements of substantive consolidation are present, this Court will only substantively consolidate a non-debtor entity with a debtor where it is shown that either: (i) the debtor and the non-debtor entity in their pre-petition conduct disregarded the separateness of their respective entitiés so significantly as to lead their creditors to treat them as one legal entity; or (ii) that post-petition, the assets and liabilities of the debtor and the non-debtor entity sought to be consolidated are so hopelessly scrambled and commingled that it is impossible to separate them and tell them apart thereby resulting in harm to all creditors. The identification of these two alternative circumstances warranting substantive consolidation, one pre-petition and one post-petition, is not, in this Court’s view, inconsistent with the circumstances that the Sixth Circuit identified in dicta as warranting substantive consolidation. In fact, in Baker & Getty, the Sixth Circuit noted that in that case, there was evidence both that the creditors of the two entities treated them as one entity and that the two entities were “hopelessly intertwined.” [In re ] Baker & Getty [Financial Services, Inc.], 974 F.2d [712] at 720 [ (6th Cir.1992) ]. In sum, the Court adopts the Owens Coming analysis. Id. at 787 (emphasis added). Having held that it had the authority, the court ultimately held that the trustee had not stated a cause of action for substantive consolidation. Id. at 791-92. This analysis was not criticized, although expressly not adopted, in the Sixth Circuit’s most recent consideration of substantive consolidation, Spradlin v. Beads and Steeds Inns, LLC, (In re Howland), No. 16-5499, 674 Fed.Appx. 482, 2017 WL 24750 (6th Cir. Jan. 3, 2017). The Sixth Circuit cautioned that “[substantive consolidation is an ‘extreme’ measure, only to be used ‘sparingly,’ especially when consolidating a non-debtor entity.” Id. at 488, 2017 WL 24750 at *5 (quoting" } ]

[ { "docid": "4575437", "title": "", "text": "was specifically organized or used to mislead creditors or to perpetrate fraud before a party can pierce a corporation’s veil. Absent such a showing, “every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.” Even though this proves to be a high bar, Florida’s alter ego remedy is an alternative to substantive consolidation that protects a non-debtor’s corporate identity without usurping the protections of the Bankruptcy Code. (1) the shareholder dominated and controlled the corporation to such an extent that the [corporation’s] independent existence, was in fact non-existent and the ... shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant. As such, this Court concludes any request to substantively consolidate non-debtors must fail under § 105(a) of the Bankruptcy Code because it is not an act that is “necessary or appropriate” to carry out any legitimate bankruptcy purpose. Rather, parties have other tools, albeit accompanied by stringent and befitting proof requirements, to force a non-debtor entity into bankruptcy. Parties can file involuntary bankruptcy petitions if they can plead and meet all the requirements of § 303 of the Bankruptcy Code. Alternatively,-they can rely on state law and the attendant legal theories of alter ego and piercing the corporate veil. But, they cannot get the shortcut of relying on § 105 to substantively consolidate non-debtors. Therefore, the parties’ factual disputes underlying the substantive consolidation requests of the Non-Debtors is irrelevant because, regardless of which party prevails, the Court lacks authority to order the substantive consolidation of the Non-Debtors. The motions to substantively are separate order consistent with this memorandum opinion shall be entered. DONE AND ORDERED. . All references to the Bankruptcy Code refer to 11 U.S.C. § 101 et seq. . Doc. No. 26 (Order Directing Appointment of Chapter 11 Trustee). . Doc. No. 228. . Doc. No. 3365, in which the trustee alleges" }, { "docid": "2749299", "title": "", "text": "Estate Ltd. Partnership, v. Lafayette Hotel Partnership (In re Lafayette Hotel Partnership), 227 B.R. 445, 454 (S.D.N.Y.1998); Granite Partners, 210 B.R. at 514-15. The Court also need not determine at this stage the extent of damages and/or the appropriate remedy in the event the Committee can sustain its allegations. In any event, even if only some of the allegations of the Bankruptcy Court Complaint are proven, equitable subordination of some or all of ATC’s claim would appear to be appropriate. ATC’s motion to dismiss the Committee’s claim for equitable subordination is denied. B. Substantive Consolidation and Alter Ego The Bankruptcy Court Complaint has a count asserting that the assets of the Debtors should be substantively consolidated with the assets of ATC, and the District Court Complaint has a similar, but not identical, count alleging that the corporate veil between the Debtors and ATC should be pierced, that the Debtors should be treated as ATC’s alter ego, and that ATC should be liable for all of their debts. ATC has moved to dismiss both claims for relief. (i) Substantive Consolidation The Committee’s claim for substantive consolidation seeks to combine the assets and liabilities of the Debtors with those of ATC so that the Debtors’ creditors can look to ATC for recovery on their bankruptcy claims. “Substantive consolidation usually results in, inter alia, pooling the assets of, and claims against, the two entities; satisfying liabilities from the resultant common fund; eliminating inter-company claims; and combining the creditors of the two companies for purposes of voting on reorganization plans.” In re Augie/Restivo Baking Co., 860 F.2d 515, 518 (2d Cir.1988). It is a remedy that is used “sparingly” and with caution. Id.; see also In re Owens Corning, 419 F.3d 195, 208-09 (3d Cir.2005); In re Fas Mart Convenience Stores, Inc., 320 B.R. 587, 594 (Bankr.E.D.Ya.2004). Bankruptcy courts in this Circuit have examined the following factors in determining whether to substantively consolidate: (i) whether the entities kept consolidated business and financial records; (ii) whether there was complete unity of interest and ownership between or among the entities; (iii) the existence of inter-company loans" }, { "docid": "18523351", "title": "", "text": "The Court noted however: Manifestly, consolidation is authorized when the affairs of the parties are so entwined as to make it impossible to administer them as separate entities. In the instant case, the plaintiffs presented no evidence. Id. at 358. Matter of Ford, supra, involved creditors’ requests that individual and corporate debtors be consolidated. There the Court found insufficient evidence to warrant consolidation, not that consolidation was not available. In In re Alpha & Omega, supra, the Court, although not finding there was jurisdiction to consolidate the non-debtor, wrote: [T]he evidence presented by trustee herein is insufficient to support a conclusion that either the partnership or the corporation was a sham or functionally indistinguishable from the other or that either served as only a conduit for the [partners and shareholders] personally. Id. at 417. The Bankruptcy Court held that its jurisdiction to order substantive consolidation arose from its equitable powers granted in Section 105(a) of the Bankruptcy Code and cited Munford as well as In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987); Matter of Walway Co., 69 B.R. 967 (Bankr. E.D.Mich.1987); In re Fairfield Constr. Co., Nos. 90-04961-G, 90-0878, 1995 WL 434474 (Bankr.E.D.Mich. September 12, 1991); and Sampsell v. Imperial Paper & Color Corp., supra. This Court, applying the de novo standard for review, finds that the Bankruptcy Court could, under existing law, substantively consolidate the assets of the debtor -with the non-debtors. Substantive consolidation of the assets of a corporate debtor and non-debtor corporations is available to the Bankruptcy Court under 11 U.S.C. § 105(a). II Although substantive consolidation is available as a remedy, only three circuit courts have ruled on this issue. “It has long been judicially recognized that substantive consolidation must be used sparingly.” Comment, Substantive Consolidation: The Back Door to Involuntary Bankruptcy, 23 San Diego L.Rev. 203 (1986). The presumption against consolidation arises because of the potentially detrimental effect consolidation may have on innocent creditors of the consolidated entity. Auto-Train, supra; Matter of Gulfco Inv. Corp., 593 F.2d 921 (10th Cir.1979); In re Flora Mir Candy Corp., 432 F.2d 1060 (2nd Cir.1970). Two tests" }, { "docid": "15911086", "title": "", "text": "Pub.L. No. 95-598 (1978) and Pub.L. No. 103-394, § 104(a) (1994), as were related provisions allowing for procedural consolidation or joint administration, courts, as well as the bankruptcy rules, recognize its validity and have ordered substantive consolidation subsequent to the enactment of the Bankruptcy Code. See, e.g., In re Reider, 31 F.3d at 1107; cf. Adv. Ctte. Notes to Bankr.Rule 1015 (allowing for joint administration, but “[t]his rule does not deal with the consolidation of cases involving two or more separate debtors ... [which is] neither authorized nor prohibited by this rule ... ”). At present, consistent with its historical roots, the power of substantive consolidation derives from the bankruptcy court’s general equity powers as expressed in § 105 of the Bankruptcy Code. See In re Augie/Restivo, 860 F.2d at 518 n. 1. The theory of substantive consolidation emanates from the core of bankruptcy jurisprudence. As Justice Douglas noted, \"{t]he power of the bankruptcy court to subordinate claims or adjudicate equities arising out of the relationship between the several creditors is complete.\" Sampsell, 313 U.s. at 219, 61 S.Ct. 904. \"[T]he theme of the Bankruptcy Act is equality of distribution.\" Id. Orders of substantive consolidation combine the assets and liabilities of separate and distinct-but related-legal entities into a single pooi and treat them as though they belong to a single entity. See Federal Deposit Insurance Corp. v. Colonial Realty Co., 966 F.2d 57, 58-59 (2d Cir.1992); Eastgroup, 935 F.2d at 248; Norton Bankruptcy Law and Practice 2d § 20:4 (1997). Substantive consolidation \"enabl[es] a bankruptcy court to disregard separate corporate entities, to pierce their corporate veils in the usual metaphor, in order to reach assets for the satisfaction of debts of a related corporation.\" James Talcott, Inc. v. Wharton (In re Continental Vending Machine Corp.), 517 F.2d 997, 1000 (2d Cir.1975). The consolidated assets create a single fund from which all claims against the consolidated debtors are satisfied; duplicate and inter-company claims are extinguished; and, the creditors of the consolidated entities are combined for purposes of voting on reorganization plans. See In re Augie/Restivo, 860 F.2d at 518. Without the" }, { "docid": "15911100", "title": "", "text": "parent corporation and the subsidiaries were not operated as a single entity; (2) the subsidiaries were not operated as part of a scheme to perpetuate the fraud; and, (3) the objecting creditors of the parent corporation had relied solely upon the sole credit of the parent corporation and did not seek additional security from the subsidiaries. See id. at 627. Based on these findings, the district court had correctly held that the subsidiaries had existed as separate corporate entities and that the objecting creditors had not been prejudiced by the corporate relationship between the parent and subsidiaries. See id. at 627-28. In contrast, Bonham, WPI and APFC were not operated as separate entities, and the creditors of APFC and WPI — like Bonham’s creditors — relied solely on Bonham, and not on the separate credit of the two corporations. Finally, the investors’ contention that the bankruptcy court cannot order substantive consolidation for the sole purpose of preserving the trustee’s avoidance power, where there are no assets to be pooled, is without merit. The primary motivation for ordering substantive consolidation in the instant appeal is to allow the trustee-to pursue avoidance actions against “Target” creditors who have recouped, in part or in full, their investments with Bonham. With substantive consolidation nunc pro tunc, the trustee will be able to recover fraudulent transfers made by WPI and APFC within one year prior to the filing of the involuntary petition against Bonham and to redistribute the recovered assets equitably to all of Bonham’s creditors. See 11 U.S.C. § 548(a)(1); see also 11 U.S.C. § 547(b) (trustee may avoid preferential transfer made to a debtor on or within ninety days before the date of the filing of the bankruptcy petition). Such a motivation is not without precedent and is proper in light of the equitable nature of substantive consolidation. Cf. In re Giller, 962 F.2d at 799; In re Kroh Bros., 117 B.R. at 502. Absent express preservation, of the trustee’s avoidance power, an order of substantive consolidation would ordinarily eliminate that power. For example, in Parkivay Calabasas, the bankruptcy court held that the" }, { "docid": "10520113", "title": "", "text": "the trust was the sole member/manager; that draws were used to pay the debtor’s and his ex-wife’s personal expenses; and that income from the LLC was reported on the debt- or’s personal income tax return. Id. at 114-25. Nevertheless, the court refused to treat the reverse veil piercing claim as an independent cause of action. This Court agrees with the rationales advanced by the courts in Howland and Clark and shall dismiss Count V of the Amended Complaint. Moreover, if the Trustee succeeds in his claims under Counts II and III of the Amended Complaint, he will have, in effect, obtained the relief sought in Count V. G. CountlV With respect to Count IV, the Trustee seeks substantive consolidation of the Buttonwood Trust, the Buttonwood Nominee Trust, the 2002 Buttonwood Nominee Trust, the Raymond Children’s Trust, despite its ostensible termination, RPC, Canal Street, Maplecroft, and Candlewood with the bankruptcy estate. The court in In re Mumford, Inc., 115 B.R. 890 (Bankr.N.D.Ga.1990), citing 11 U.S.C. §§ 541(a) and 542, stated: Defendants are correct in asserting that any such remedy must be predicated upon the estate’s right to property in the hands of someone else. That right is created by Bankruptcy Code § 541, however, which provides that property of the estate includes all legal and equitable interests of the estate, 11 U.S.C. § 541(a)(1) (1990), and § 542, which requires that all estate property must be turned over to the trustee, 11 U.S.C. § 542(a) (1990). Substantive consolidation is essentially a complex turnover proceeding because the debtor is asking the nondebtor affiliated entity to bring into the estate assets in which the debt- or asserts an unseparable interest. As long as the debtor can satisfy the pleading requirements of substantive consolidation, i.e. that assets are commingled and unseparable or that creditors have relied on the entities as a single unit and that assets should not be separated, then the debtor has correctly invoked its legal rights under these Code sections. Id. at 398. In Logistics Info. Sys., Inc. v. Braunstein (In re Logistics Info. Sys., Inc.), 432 B.R. 1 (D.Mass.2010), the" }, { "docid": "23104536", "title": "", "text": "and expense records, and must make separate applications for employment and for compensation. Substantive consolidation has a far different impact on the rights of the debtor and creditors. Its nearest non-bankruptcy analogy is the merger of two corporations under state law. In place of two or more debtors, each with its own estate and body of creditors, substantive consolidation substitutes a single debtor, a single estate with a common fund of assets, and a single body of creditors. Chemical Bank New York Trust Company v. Kheel (In re Seatrade Corporation), 369 F.2d 845, 847 (2d Cir.1966); In re Baker & Getty Financial Services, Inc., 78 B.R. 139, 141 (Bankr.N.D.Ohio 1987); In re W.T. Grant Co., 4 B.R. 53, 73 (Bankr.S.D.N.Y.1980), aff'd, 20 B.R. 186 (S.D.N.Y.1982). Assets and liabilities of each entity are pooled and inter-entity accounts and claims are eliminated. Creditors of the separate entities become creditors of the consolidated entity. Duplicative claims by creditors, uncertain as to which debtor owes their debts, are eliminated. See generally, 5 Collier on Bankruptcy 111100.06 (15th ed. 1988); Seligson & Mandell, “Multi-Debtor Petition—Consolidation of Debtors and Due Process of Law,” 73 Comm.L.J. 341 (1968). The Bankruptcy Code and the Bankruptcy Rules are both silent on the subject of substantive consolidation. The advisory committee note to Bankruptcy Rule 1015(b), which provides for joint administration, states: This rule does not deal with the consolidation of cases involving two or more separate debtors. Consolidation, as distinguished from joint administration, is neither authorized nor prohibited by this rule since the propriety of consolidation depends on substantive considerations and affects the substantive rights of the creditors of the different estates. Substantive consolidation is entirely a creature of court-made law. The bankruptcy court’s power of substantive consolidation results from its general equitable powers granted in Bankruptcy Code § 105(a), 11 U.S.C. § 105(a) (Supp.1988), which provides in part: “The Court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” In re Baker & Getty Financial Services, Inc., 78 B.R. 139, 141 (Bankr.N.D.Ohio 1987). Substantive consolidation was given tacit" }, { "docid": "14796335", "title": "", "text": "to AIA’s February 4, 2002 filing date under the theories of “single economic unit” and “single business enterprise.” Wells Fargo objected to the Application. On December 11, 2002, Peerbhai filed a Chapter 11 bankruptcy petition, which he later converted into a Chapter 7 petition. The United States Bankruptcy Court for the Southern District of Texas held eviden-tiary hearings on the Application on May 2 and May 23, 2003. Sommers argued that Peerbhai and AIA were not separate legal entities, and that the finances of AIA and AIG were commingled by Peerbhai so that substantively consolidating all of Peer-bhai’s personal assets with the assets of AIA and AIG was the only way to ensure equitable distribution of the assets to the creditors of AIA and AIG. On September 25, 2003, the bankruptcy court issued Findings of Fact and Conclusions of Law. It determined that Peerbhai engaged in a pattern of activity that was aimed at concealing AIA’s proceeds from its creditors and from Peerbhai’s personal creditors, that Peerbhai made no meaningful distinction between his funds and those of AIA while AIA was a going concern, that substantial identity between Peerbhai and AIA existed and AIA’s creditors dealt with Peerbhai and AIA as a single economic unit and did not rely on their separate identities in extending credit, that Peer-bhai and AIA did not observe the corporate formalities required by Texas law, and that Peerbhai treated AIA as an alter ego of himself, using the AIA corporate status to commit fraud against his and AIA’s creditors. Based on these findings, the bankruptcy court concluded that substantive consolidation was appropriate for several reasons: first, substantive consolidation would benefit all creditors, and not unfairly prejudice any creditor, because the financial affairs of AIA and Peerbhai were so entangled that the assets of each could not be segregated; second, substantive consolidation would avoid the harm of AIA’s creditors receiving virtually nothing in a bankruptcy that was caused primarily by Peerbhai looting AIA; third, Wells Fargo would not be unfairly harmed by substantive consolidation because of Wells Fargo’s knowledge and the circumstances surrounding the execution of" }, { "docid": "7136630", "title": "", "text": "205-206. However, in its specific construct, directed to the administration of an estate in a bankruptcy case under federal law, substantive consolidation had its origin in a 1941 decision of the United States Supreme Court, Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 61 S.Ct. 904, 85 L.Ed. 1293 (1941). Id. Under this framing, substantive consolidation is uniquely a matter of bankruptcy law, and its application is limited to bankruptcy cases. All of the circuits that have recognized the remedy articulate its outcome and effects in uniform fashion. When substantive consolidation is ordered for related bankruptcy cases, the respective debtors’ estates are merged and their debt structures are combined. In re Pacific Lumber Co., 584 F.3d 229, 249 (5th Cir.2009); In re Owens Corning, 419 F.3d at 206. Within the bankruptcy process, this undoes the consequences of the debtor-entities’ pre-petition status as separate legal persons. In re Owens Corning, 419 F.3d at 205-206 (classifying substantive consolidation as a remedy of (and for) “corporate disregard,” comparable in some aspects of its operation to piercing the corporate veil, “alter ego,” and equitable subordination). Pre- (and post-) petition liens against particular assets are preserved, but otherwise the resultant pool of assets is subject to the resultant pool of unsecured claims. In re Augie/Restivo Baking Co., Ltd., 860 F.2d at 518. See also In re Owens Corning, 419 F.3d at 206 (substantive consolidation “brings all the assets of a group of entities into a single survivor,” i.e., the consolidated estate, and “merges liabilities as well”). Inter-company liabilities among the debtors are extinguished. Eastgroup Properties, 935 F.2d at 248; In re Auto-Train Corp., Inc., 810 F.2d at 276. That is the outcome, for the administration of the bankruptcy cases and the one resulting estate, going forward. The effects, however, are distinct. They, too, are recognized in pointed fashion by most of the circuits. Put most succinctly, substantive consolidation “almost invariably redistributes wealth among the creditors of the various entities.” In re Auto-Train Corp., Inc., 810 F.2d at 276. See also Eastgroup Properties, 935 F.2d at 248. It poses the possibility of “forcing creditors" }, { "docid": "18523350", "title": "", "text": "313 U.S. 215, 61 S.Ct. 904, 85 L.Ed. 1293, reh’g denied, 313 U.S. 600, 61 S.Ct. 1107, 85 L.Ed. 1552 (1941) and Soviero v. Franklin Nat’l Bank of Long Island, 328 F.2d 446 (2nd Cir.1964) as authority for consolidation of the assets of a debtor and non-debtor. In re Julien, 120 B.R. at 933-34. The Munford Court relied on 11 U.S.C. § 105(a) powers to support its refusal to dismiss a complaint seeking to consolidate a debtor with two non-debtor corporations. Sampsell involved an individual debtor who had, with intent, transferred assets to the non-debtor corporation to keep the assets from his creditors. The In re Julien Court further noted: This Court does not conclude that a bankruptcy court should never order substantive consolidation or that it lacks the equitable authority to do so in an appropriate factual environment. Id. at 936. In In re R.H.N. Realty, supra, the Court found that a Chapter 7 trustee simply does not have standing to bring an alter ego cause of action on behalf of the debtor’s creditors. The Court noted however: Manifestly, consolidation is authorized when the affairs of the parties are so entwined as to make it impossible to administer them as separate entities. In the instant case, the plaintiffs presented no evidence. Id. at 358. Matter of Ford, supra, involved creditors’ requests that individual and corporate debtors be consolidated. There the Court found insufficient evidence to warrant consolidation, not that consolidation was not available. In In re Alpha & Omega, supra, the Court, although not finding there was jurisdiction to consolidate the non-debtor, wrote: [T]he evidence presented by trustee herein is insufficient to support a conclusion that either the partnership or the corporation was a sham or functionally indistinguishable from the other or that either served as only a conduit for the [partners and shareholders] personally. Id. at 417. The Bankruptcy Court held that its jurisdiction to order substantive consolidation arose from its equitable powers granted in Section 105(a) of the Bankruptcy Code and cited Munford as well as In re Auto-Train Corp., Inc., 810 F.2d 270, 276 (D.C.Cir.1987); Matter" }, { "docid": "10520111", "title": "", "text": "B.R. at 164. The court observed that resolution of the issue turned on whether the trustee could prove that the debtors made a fraudulent transfer of their interest in property by using a “reverse veil piercing” theory that would enable him to treat the debtors and their wholly owned limited liability company as the same. Because Kentucky has not adopted reverse veil piercing, the court held that the trustee could not proceed under that theory but afforded him an opportunity to amend his complaint to seek substantive consolidation. The court stated: Traditional veil piercing in Kentucky requires a finding that the corporation committed the wrongdoing before allowing the injured party -to recover for that harm from the shareholders, officers, or directors. If Kentucky were to adopt a reverse veil piercing theory, it is reasonable to conclude that Kentucky would treat the doctrine as an equitable remedy that requires wrongdoing by a corporation’s shareholders, officers, or directors before considering whether justice requires piercing the veil to allow the injured party to recover from the corporation’s assets. There is no indication that Kentucky would go one step further and treat the business entity and its insiders as one in the same. In re Howland, 516 B.R. at 169-70. See also In re Clark, 525 B.R. at 125-26. The court in In re Clark, determined that a limited liability company organized shortly after the creation of a trust was a single member, member-managed limited liability company whose sole member and manager was the trust; that from its inception through the date of conversion of the debtor’s Chapter 12 case to Chapter 7, the debtor exercised total and sole control over the LLC’s operations and frequently failed to honor the limited liability structure and identify himself as the member/manager; that the debtor conflated the LLC’s assets and his own in his bankruptcy schedules; that the identity of the LLC’s assets was difficult to ascertain because of the debtor’s actions, that the debt- or testified that he was employed by the LLC but did not receive a salary but took “draws” from the LLC, although" }, { "docid": "18154424", "title": "", "text": "the assets transferred to a corporate subsidiary be turned over to its parent’s trustee in bankruptcy for wrongs such as fraudulent transfers, Kors, supra, at 391, in effect bringing back to the bankruptcy estate assets wrongfully conveyed to an affiliate. If a corporate parent is both a creditor of a subsidiary and so dominates the affairs of that entity as to prejudice unfairly its other creditors, a court may place payment priority to the parent below that of the other creditors, a remedy known as equitable subordination, which is now codified in § 510(c) of the Bankruptcy Code. See generally id. at 394-95. Adding to these remedies, the Supreme Court, little more than six decades ago, approved (at least indirectly and perhaps inadvertently) what became known as substantive consolidation. Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 61 S.Ct. 904, 85 L.Ed. 1293 (1941). In Sampsell an individual in bankruptcy had transferred assets prepetition to a corporation he controlled. (Apparently these became the corporation’s sole assets.) When the bankruptcy referee ordered that the transferred assets be turned over by the corporation to the individual debtor’s trustee, a creditor of the non-debtor corporation sought distribution priority with respect to that entity’s assets. In deciding that the creditor should not be accorded priority (thus affirming the bankruptcy referee), the Supreme Court turned a typical turnover/fraudulent transfer case into the forebear of today’s substantive consolidation by terming the bankruptcy referee’s order (marshaling the corporation’s assets for the benefit of the debtor’s estate) as “consolidating the estates.” Id. at 219, 61 S.Ct. at 907. Each of these remedies has subtle differences. “Piercing the corporate veil” makes shareholders liable for corporate wrongs. Equitable subordination places bad-acting creditors behind other creditors when distributions are made. Turnover and fraudulent transfer bring back to the transferor debtor assets improperly transferred to another (often an affiliate). Substantive consolidation goes in a direction different (and in most cases further) than any of these remedies; it is not limited to shareholders, it affects distribution to innocent creditors, and it mandates more than the return of specific assets to the" }, { "docid": "5048423", "title": "", "text": "Cattle Corp.), 213 B.R. 870 (Bankr. D. Kan. 1997), the court observed that “[substantive consolidation should not be confused with either the corporate law concept of piercing the corporate veil or the bankruptcy law concept of joint administration. Unlike piercing the corporate veil, substantive consolidation does not seek to hold shareholders liable for acts of their incorporated entity.” Id. at 874 (footnote omitted). In Butler v. Candlewood Road Partners, LLC (In re Raymond), 529 B.R. 455 (Bankr. D. Mass. 2015), this Court discussed the relationship between veil piercing, reverse veil piercing and substantive consolidation, stating: In Massachusetts, piercing the corporate veil is a well-recognized, yet fact specific, remedy. See Zimmerman v. Puccio, 613 F.3d 60, 74 (1st Cir. 2010); My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620, 233 N.E.2d 748 (1968). In addition, Massachusetts courts hold that “the corporate veil will only be pierced in rare situations.” Birbara v. Locke, 99 F.3d 1233, 1239 (1st Cir. 1996). In Riley v. Tencara, LLC (In re Wolverine, Proctor & Schwartz, LLC), 447 B.R. 1 (Bankr. D.Mass.2011), this Court observed that “[a]lthough the standards for piercing the corporate veil are articulated most frequently with respect to corporations, ... the same principles would apply for alter ego liability to attach to members of limited liability companies.” Id. at 36 (citing In re Giampietro, 317 B.R. 841, 847-48 and n. 9 (Bankr. D. Nev. 2004)). See also Rodrigues v. Osorno (In re Osorno), 478 B.R. 523, 536 (Bankr. D.Mass.2012). In re Raymond, 529 B.R. at 475. In Raymond, this Court referenced Logistics Information Sys., Inc. v. Braunstein (In re Logistics Information Sys., Inc.), 432 B.R. 1 (D. Mass. 2010), in which the district court stated: Bankruptcy courts may substantively consolidate two or more related entities and thereby pool their assets. Substantive consolidation “treats separate legal entities as if they were merged into a single survivor left with all the cumulative assets and liabilities.” Genesis Health Ventures, Inc. v. Stapleton (In re Genesis Health Ventures, Inc.), 402 F.3d 416, 423 (3d Cir. 2005) .... Substantive consolidation of two or more debtors’ estates" }, { "docid": "1065850", "title": "", "text": "In re Owens Corning, 419 F.3d at 208-09, 211 and In re American Camshaft Specialties, Inc., 410 B.R. at 787). In re Howland involved a Chapter 7 trustee’s efforts to avoid a fraudulent transfer made by a closely held limited liability company using what the court called a “reverse” piercing of the corporate veil. The defendant had moved for judgment on the pleadings, which the bankruptcy court granted. In re Howland, 518 B.R. 408 (Bankr. E.D. Ky. 2014). The trustee moved to amend his complaint, which the bankruptcy court denied as futile .on the basis that the complaint “failed to adequately plead a claim for substantive consolidation.” In re Howland, 674 Fed.Appx. at 484, 2017 WL 24750, at *2. In analyzing what a trustee must allege to state a claim for substantive consolidation, the Sixth Circuit recited the Owens Coming test, virtually the same test adopted by the court in In re American Camshaft Specialties Inc., but in a footnote commented that it was not adopting the Owens Coming test, but merely using those factors because the parties had agreed to that test. Id. at 488 n.3, 2017 WL 24750 at *5 n.3. The Sixth Circuit again noted that it “has not adopted a test for evaluating a substantive consolidation claim.” Id. (quoting In re Cyberco Holdings, Inc., 734 F.3d at 439 (“Our cases have not discussed the concept at length or prescribed factors to consider when it is to be applied, but we have recognized the procedure without criticism.”)). Having reviewed the various tests, and noting that the Sixth Circuit has not adopted a test, the court finds that it favors and will adopt the Auto-Train/East-group approach. The proponent is required to show that there is substantial identity between the debtor and the target. This can be shown through disregard of corporate separateness, joint ownership, or the circumstance where one entity exercises ultimate control over the assets and the other entity operates as a mere instrumentality of the debtor. The proponent must also demonstrate that the debtor’s creditors will suffer greater prejudice in the absence of consolidation than the" }, { "docid": "645778", "title": "", "text": "income tax return. [Adv. Doc. 22-1, Amended Complaint ¶¶ 14-15.] These allegations suggest that the Debtors used Meadow Lake assets as their own and contributed personal funds to the LLC, but do not indicate why any mixing of assets cannot be undone without prohibitive cost, as is required for substantive consolidation. More specific factual allegations about current financial statements and bank accounts, or allegations about the lack of such records or their confusing nature, could have supported an inference that assets and liabilities are hopelessly scrambled, but the allegations actually presented are insufficient. The Trustee had two years before filing the original Complaint to investigate and compile facts showing that the Debtors disregarded the separateness of Meadow Lake. Given that period of time and the extensive document request powers available to a bankruptcy trustee, the lack of specificity in the Amended Complaint means the Trustee has failed to “raise a reasonable expectation that discovery will reveal evidence” giving rise to a right to substantive consolidation of the Debtors and Meadow Lake. Twombly, 550 U.S. at 556, 127 S.Ct. 1955, Further discovery does not appear likely to yield evidence warranting such an exceptional remedy. This Court also agrees with the Bankruptcy Court’s reservations about circumventing the provisions of the bankruptcy code related to involuntary bankruptcy by granting substantive consolidation of Meadow Lake, a non-debtor. [Adv. Doc. 24 at 8.]; see also Law v. Siegel, — U.S. —, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014) (recognizing limits on a bankruptcy court’s inherent equitable powers). Since this Court has held that the Trustee may not rely on either reverse veil piercing or substantive consolidation, it need not address the other issues raised by the Appellant. See [DE 4, Appellant’s Brief at 16-17.] IV. CONCLUSION The Trustee’s underlying fraudulent transfer claim is predicated on the availability of reverse veil piercing or substantive consolidation. The Trustee needs to use one of the theories to demonstrate that the Debtors transferred the Farm to Beads and Steeds. However, for the reasons discussed, the Trustee has fallen short in her reverse veil piercing and substantive consolidation theories," }, { "docid": "10520114", "title": "", "text": "any such remedy must be predicated upon the estate’s right to property in the hands of someone else. That right is created by Bankruptcy Code § 541, however, which provides that property of the estate includes all legal and equitable interests of the estate, 11 U.S.C. § 541(a)(1) (1990), and § 542, which requires that all estate property must be turned over to the trustee, 11 U.S.C. § 542(a) (1990). Substantive consolidation is essentially a complex turnover proceeding because the debtor is asking the nondebtor affiliated entity to bring into the estate assets in which the debt- or asserts an unseparable interest. As long as the debtor can satisfy the pleading requirements of substantive consolidation, i.e. that assets are commingled and unseparable or that creditors have relied on the entities as a single unit and that assets should not be separated, then the debtor has correctly invoked its legal rights under these Code sections. Id. at 398. In Logistics Info. Sys., Inc. v. Braunstein (In re Logistics Info. Sys., Inc.), 432 B.R. 1 (D.Mass.2010), the Chapter 7 trustee filed an adversary proceeding on behalf of the estate against Logistics Information Systems, Inc., its principal, William Sper-beck, and Arclogix, Inc. in which he alleged that there had been fraudulent conveyances under state law. The trustee asserted claims for turnover under bankruptcy law and sought to establish successor liability and the usurpation of corporate opportunity. In addition, he sought to pierce the corporate veil and to reach and apply assets held by Sperbeck and Arclogix. He also filed, in the main case, a motion to substantively consolidate the non-debtor Arclogix with the debtor Logistics, which motion was consolidated with the adversary proceeding for trial. The district court considered an appeal by Logistics, Sperbeck, and Arclogix from a final judgment and a final order of the bankruptcy court in favor of the Chapter 7 trustee. According to the district court, “[t]he bankruptcy court held that asset transfers made by Logistics to or for the benefit of Arclogix were fraudulent conveyances” ... and ... ordered Arclogix to be substantively consolidated with Logis ties. Id." }, { "docid": "4575435", "title": "", "text": "debtor. For example, a minimum claim amount is required to even initiate an involuntary proceeding. If the movant clears this first hurdle, and the number of claimholders is significant, the movant must obtain a consensus of at least three other claimholders to ensure the action is supported and justified. The stakes of hastily forcing a party into involuntary bankruptcy are high because if the protective requirements of § 303 are not met, a court can hold all petitioning creditors liable for costs, attorneys’ fees, and damages. Given the significant protections § 303 provides to debtors facing involuntary bankruptcy, and the lack of commensurate protections for substantive consolidation, “forcing a non-debtor into bankruptcy via substantive consolidation circumvents these strict requirements and is in contravention of [the Code].” Section 105 of the Bankruptcy Code only allows a bankruptcy court to take actions “necessary or appropriate” to achieve a stated statutory goal. The section certainly does not and should not allow a bankruptcy court to circumvent statutory protections built into the code. Third, state law provides remedies for parties who can establish that a non-debt- or entity truly is an “alter ego” of a voluntary debtor. In essence, by piercing the corporate veil, the party proves that the two entities legally are the same, not two different entities. Therefore, they are not really debtor and non-debtor, but one. Courts generally uphold the corporate form to maintain its limited liability purpose because “[e]very corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders.” But, when corporate separateness is improperly disregarded such that a corporation and its subsidiary act as “mere instrumentalities” of each other, litigants may pierce the veil of a corporation’s limited liability and hold a corporation’s owners responsible for its debts. To pierce the corporate veil under Florida law, the claimant has the heavy burden to prove, by a preponderance of the evidence, that: Florida’s high regard for corporate ownership requires a showing that the corporation" }, { "docid": "4575436", "title": "", "text": "parties who can establish that a non-debt- or entity truly is an “alter ego” of a voluntary debtor. In essence, by piercing the corporate veil, the party proves that the two entities legally are the same, not two different entities. Therefore, they are not really debtor and non-debtor, but one. Courts generally uphold the corporate form to maintain its limited liability purpose because “[e]very corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders.” But, when corporate separateness is improperly disregarded such that a corporation and its subsidiary act as “mere instrumentalities” of each other, litigants may pierce the veil of a corporation’s limited liability and hold a corporation’s owners responsible for its debts. To pierce the corporate veil under Florida law, the claimant has the heavy burden to prove, by a preponderance of the evidence, that: Florida’s high regard for corporate ownership requires a showing that the corporation was specifically organized or used to mislead creditors or to perpetrate fraud before a party can pierce a corporation’s veil. Absent such a showing, “every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.” Even though this proves to be a high bar, Florida’s alter ego remedy is an alternative to substantive consolidation that protects a non-debtor’s corporate identity without usurping the protections of the Bankruptcy Code. (1) the shareholder dominated and controlled the corporation to such an extent that the [corporation’s] independent existence, was in fact non-existent and the ... shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant. As such, this Court concludes any request to substantively consolidate non-debtors must fail under § 105(a) of the Bankruptcy Code because it is not an act that is “necessary" }, { "docid": "15911087", "title": "", "text": "at 219, 61 S.Ct. 904. \"[T]he theme of the Bankruptcy Act is equality of distribution.\" Id. Orders of substantive consolidation combine the assets and liabilities of separate and distinct-but related-legal entities into a single pooi and treat them as though they belong to a single entity. See Federal Deposit Insurance Corp. v. Colonial Realty Co., 966 F.2d 57, 58-59 (2d Cir.1992); Eastgroup, 935 F.2d at 248; Norton Bankruptcy Law and Practice 2d § 20:4 (1997). Substantive consolidation \"enabl[es] a bankruptcy court to disregard separate corporate entities, to pierce their corporate veils in the usual metaphor, in order to reach assets for the satisfaction of debts of a related corporation.\" James Talcott, Inc. v. Wharton (In re Continental Vending Machine Corp.), 517 F.2d 997, 1000 (2d Cir.1975). The consolidated assets create a single fund from which all claims against the consolidated debtors are satisfied; duplicate and inter-company claims are extinguished; and, the creditors of the consolidated entities are combined for purposes of voting on reorganization plans. See In re Augie/Restivo, 860 F.2d at 518. Without the check of substantive consolidation, debtors could insulate money through transfers among inter-company shell corporations with impumty. The primary purpose of substantive consolidation “is to ensure the equitable treatment of all creditors.” Id. Absent any statutory guidelines and with an eye towards its equitable goals, courts have ratified substantive consolidation in a variety of circumstances. For example, the substantive consolidation of two estates was first tacitly approved by the Supreme Court in the context of a debtor who had abused corporate formalities and allegedly made fraudulent conveyances of the debtor shareholder’s assets to the corporation. See Sampsell, 313 U.S. at 218-19, 61 S.Ct. 904. In a series of early substantive consolidation decisions, the Second Circuit noted several circumstances in which substantive consolidation is proper, including where the creditors of the consolidated entities treated the entities as a unit and the business affairs of the consolidated entities were hopelessly entangled. See In re Augie/Restivo, 860 F.2d at 518; In re Flora Mir, 432 F.2d at 1062-63; In re Continental Vending, 517 F.2d at 1000. More recently, in" }, { "docid": "18154425", "title": "", "text": "transferred assets be turned over by the corporation to the individual debtor’s trustee, a creditor of the non-debtor corporation sought distribution priority with respect to that entity’s assets. In deciding that the creditor should not be accorded priority (thus affirming the bankruptcy referee), the Supreme Court turned a typical turnover/fraudulent transfer case into the forebear of today’s substantive consolidation by terming the bankruptcy referee’s order (marshaling the corporation’s assets for the benefit of the debtor’s estate) as “consolidating the estates.” Id. at 219, 61 S.Ct. at 907. Each of these remedies has subtle differences. “Piercing the corporate veil” makes shareholders liable for corporate wrongs. Equitable subordination places bad-acting creditors behind other creditors when distributions are made. Turnover and fraudulent transfer bring back to the transferor debtor assets improperly transferred to another (often an affiliate). Substantive consolidation goes in a direction different (and in most cases further) than any of these remedies; it is not limited to shareholders, it affects distribution to innocent creditors, and it mandates more than the return of specific assets to the predecessor owner. It brings all the assets of a group of entities into a single survivor. Indeed, it merges liabilities as well. “The result,” to repeat, “is that claims of creditors against separate debtors morph to claims against the consolidated survivor.” In re Genesis Health Ventures, 402 F.3d at 423. The bad news for certain creditors is that, instead of looking to assets of the subsidiary with whom they dealt, they now must share those assets with all creditors of all consolidated entities, raising the specter for some of a significant distribution diminution. Though the concept of consolidating estates had Supreme Court approval, Courts of Appeal (with one exception) were slow to follow suit. Stone v. Eacho (In re Tip Top Tailors, Inc.), 127 F.2d 284 (4th Cir.1942), cert. denied, 317 U.S. 635, 63 S.Ct. 54, 87 L.Ed. 512 (1942), was the first to pick up on Sampsell’s new remedy. Little occurred thereafter for more than two decades, until the Second Circuit issued several decisions — Soviero v. National Bank of Long Island, 328 F.2d" } ]

[ { "docid": "22911832", "title": "", "text": "his wife own a home located in Mathews, North Carolina with an estimated fair market value of $52,500.00. The property is encumbered by the secured claims of Cameron-Brown Company and AVCO. There is some $8,000.00 of equity in the property, which would be totally offset by the Debtor and his wife’s exemptions under N.C. law. The Debtor is employed by Mathews Home Furnishings, Inc; a closely-held business which is owned by his wife. His testimony indicates his family’s annual income exceeds $38,000.00; his petition disclosed a monthly income of $3,420.00 or $41,400.00 annually. DISCUSSION Under § 707(b) of the Code, Bankruptcy Judges are authorized to dismiss, sua sponte, cases filed by individual debtors having “primarily consumer debts”, where the Court finds that to allow the case to proceed would be a “substantial abuse” of the provisions of Chapter 7. The Bankruptcy Amendments and Federal Judgeship Act (of which 707(b) is a part) failed to define the phrases “primarily consumer debts” and “substantial abuse”. The section is of such recent vintage that no published cases have construed the terms. I. The Debtor has not suggested that the words “substantial abuse” should be given anything other than their ordinary, plain meaning and the court so construes them. By this definition, it is readily apparent that this case is one in which allowing the Debtor relief would constitute a substantial abuse of Chapter 7. It was the philosophy of the constitutional authors and the intent of Congress in establishing the Bankruptcy Code, that this relief was to provide a fresh start for financially troubled persons. Bankruptcy was not intended to provide a means for the unscrupulous to avoid their creditors, but was designed to provide a second chance for persons who for reasons of calamity, sickness, unemployment, and the like were unable to meet their obligations. The case before the Court is not such a case. First, this case was brought, not because of the Debtor’s unemployment or an inability to pay on his part, but because he simply desired to shuck a couple of his debts. His testimony was that he had" } ]

[ { "docid": "4628831", "title": "", "text": "by an individual debtor under this chapter [11 USCS §§ 701 et seq.] whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter [11 USCS §§ 701 et seq.]. There shall be a presumption in favor of granting the relief requested by the debtor. Thus under this statute, two issues are presented — whether the granting of relief would be a substantial abuse of Chapter 7, and whether the debtor’s debts are primarily consumer debts. II. This Court has previously addressed the standards for determining substantial abuse. In In re Bell, 56 B.R. 637, 641 (Bankr.E.D.Mich.1986) (Bell I), on remand 65 B.R. 575 (Bankr.E.D.Mich.1986) (Bell II), this Court held: This Court concludes that the primary, if not exclusive, factor to be considered in determining whether a debtor’s petition constitutes a substantial abuse of the Bankruptcy Code under Section 707(b) is whether the debtor will have sufficient income to repay a meaningful part of his or her debts, within the context of either Chapter 11 of Chapter 13. Specifically, the Court applied the following tests: Thus, the Court concludes that the first issue to be addressed is the amount of the debtor’s disposable income. The second issue is then whether use of this disposable income in a plan would result in repayment of a meaningful part of the debts. These judgments are obviously somewhat subjective, but can be guided by the Court’s sense of equity and by balancing the effects on the various parties in interest of granting a discharge or alternatively dismissing the petition. See In re White, [49 B.R. 869 (Bankr.W. D.N.C.1985)] supra. In any case, the presumption in favor of granting the relief requested by the debtor, as stated in Section 707(b), must be abided. Id. at 641-42. Therefore, if the debtor can repay a meaningful part of his unsecured debt of $8,544 in a Chapter 13 plan, his Chapter 7 petition should be dismissed. III. A. The debtor’s disposable income is calculated from his income and his expenses which are reasonably necessary" }, { "docid": "5690755", "title": "", "text": "637, 648, 91 S.Ct. 1704, 1710-11, 29 L.Ed.2d 233 (1971) and cases cited therein. Yet since enactment of the 1984 amendments, courts have sought to accommodate the Code’s emphasis on a “fresh start” for the debtor, with the disquieting realization that use of Chapter 7 by certain debtors strains equity to a breaking point. As expressed in In re Hudson, 56 B.R. 415, 419 (Bankr. N.D.Ohio 1985): It is well established that the provisions of Chapter 7 were intended to afford relief to a debtor when he finds himself in financial circumstances which threaten his immediate well-being, [citation omitted] If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them. Consequently, a set of criteria to be considered for purposes of Code § 707(b) has slowly evolved. The recent cases of In re Kress, supra, 57 B.R. at 878 and In re Gaukler, 63 B.R. 224, 225 (Bankr. D.N.D. 1986) have synthesized the following con siderations, against which the facts of a particular case are to be assessed: (1) whether the debtors have a likelihood of sufficient future income to fund a Chapter 13 plan which would pay a substantial portion of the unsecured claims; (2) whether the debtor’s petition was filed as a consequence of illness, disability, unemployment or some other calamity; (3) whether the schedules suggest the debtors incurred cash advances and consumer purchases in an excess of their ability to repay them; (4) whether the debtors’ proposed family budget is excessive or extravagant; and (5) whether the debtors’ statement of income and expenses is misrepresenta-tive of their true financial condition. See In re Grant, supra; In re White, supra; In re Bryant, supra; see also In re Shands, 63 B.R. 121, 124" }, { "docid": "23658751", "title": "", "text": "Bell, 56 B.R. 637, 641 (Bankr.E.D.Mich.1986) (primary, if not exclusive factor, is whether enough income exists to repay meaningful part of debts). This court will stop short, however, of adopting the position that the amount of excess or disposable income is the only determining factor. Instead, we will adhere to the approach used in Kress, Walton and their progeny, and employ an analysis that places greatest emphasis on debtors’ ability to repay a substantial portion of their debts, but retains the flexibility to take other factors into account, where appropriate. These factors may include, but are not limited to, the following: (1) Was the bankruptcy petition filed due to sudden illness, calamity, disability, or unemployment? (2) Did debtor incur cash advances and make consumer purchases far in excess of the ability to repay? (3) Is debtor’s proposed family budget excessive or unreasonable? (4) Do debtor’s schedules and statement of current income and expenses reasonably and accurately reflect the true financial condition? (5) Was the petition filed in good faith? See generally Kress, 57 B.R. at 877-78; Walton, 69 B.R. at 154; Grant, 51 B.R. at 392-93. The foregoing guidelines will lead us through both the present and any future substantial abuse inquiries this court may undertake. In the instant case, the presumption in favor of debtor is overcome by the overwhelming importance of just one factor— debtor’s substantial disposable income. The plain and simple truth of the matter is that debtor’s monthly family income is $2,944.00 and their stated monthly expenses are $1,905.50. Without having to examine the propriety or reasonableness of any of the expenses, we feel that the substantial amount of disposable income, in and of itself, indicates that debtor could repay a significant portion of his unsecured debts, without undue hardship. If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally" }, { "docid": "18570916", "title": "", "text": "Kellys for the purpose of recovering money allegedly overpaid in purchasing their home. The litigation thus served primarily a “family” or “household” purpose within the meaning of section 101(7). A debt for attorney’s fees incurred in attempting to further this purpose, like any other debt so incurred, qualifies as a consumer debt. The ultimate question we must decide under section 707(b) is, of course, whether debtors have “primarily consumer debts.” “Primarily” means “for the most part.” Webster’s Ninth New Collegiate Dictionary 934 (1984). Thus, when “the most part” — i.e., more than half — of the dollar amount owed is consumer debt, the statutory threshold is passed. Here that standard is easily met. Of the Kellys’ $172,000 indebtedness, $152,000 (approximately 88 percent) is consumer debt. They have primarily consumer debts within the meaning of section 707(b). B. Substantial Abuse 1. The second prerequisite to dismissal under section 707(b) is a finding that granting the debtor’s petition would be a “substantial abuse” of chapter 7. With the singular exception of the BAP below, the unanimous conclusion of bankruptcy courts has been that the principal factor to be considered in determining substantial abuse is the debtor’s ability to repay the debts for which a discharge is sought. See, e.g., In re Walton, 69 B.R. 150, 154 (E.D.Mo.1986); In re Cord, 68 B.R. 5, 7 (Bankr.W.D.Mo.1986); In re Gaukler, 63 B.R. 224, 225 (Bankr.D.N.D.1986); In re Kress, 57 B.R. 874, 878 (Bankr.D.N.D.1985); In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985); In re Grant, 51 B.R. 385, 391 (Bankr.N.D.Ohio 1985); In re Edwards, 50 B.R. 933, 936-37 (Bankr.S.D.N.Y.1985); In re White, 49 B.R. 869, 874 (Bankr.W.D.N.C.1985); see also In re Bryant, 47 B.R. 21, 24-26 (Bankr.W.D.N.C.1984) (dismissing petition where debtor was able to pay debts and had not truthfully reported his financial condition); 4 Collier ¶ 707.07 (primary factor is ability to repay debts; other factors include failure to fully disclose financial condition and indication that debtor has not suffered any calamity but merely desires to avoid paying debts); 3 Collier ¶ 521.06[4], at 521-26. In determining ability to pay, courts have looked" }, { "docid": "23164489", "title": "", "text": "the Court adopted an approach whereby the term “substantial abuse” would be given its ordinary and plain meaning. In so doing, the Court set forth certain factors which surround the filing of a petition which it believed were pertinent in determining whether or not the granting of relief would be a substantial abuse. These factors included the circumstances which lead to the debtor’s financial difficulties, the execution of the debtor’s duty to fully and accurately disclose their financial position, and any exhibition of bad faith in the representation of their financial future. In In re White, 49 B.R. 869 (Bkcy.W.D.N.C. 1985), the Court adopted both an ordinary and plain meaning approach as well as a totality of the circumstances approach. In In re Grant, supra, the Court considered the factors set forth in both Bryant and White. However, it further concluded that “substantial abuse” also contemplated circumstances in which the debtor’s income, when compared to his expenses, was sufficient to repay unsecured creditors a significant portion of what they were owed if done under the auspices of a Chapter 13 plan. See also, In re Edwards, 50 B.R. 933 (Bkcy.S.D.N.Y.1985) at 937. It is well established that the provisions of Chapter 7 were intended to afford relief to a debtor when he finds himself in financial circumstances which threaten his immediate well-being. Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them. Since the availability of Chapter 7 presupposes that a debtor has made a reasonable effort to pay his debts, it would be a substantial abuse of that Chapter to allow a debtor to discharge those debts without first making" }, { "docid": "23658746", "title": "", "text": "task of deciding whether substantial abuse exists in the present case. In relevant part, 11 U.S.C. § 707(b) provides: (b) After notice and hearing, the court, on its own motion or on a motion by the U.S. Trustee, ... may dismiss a case filed by an individual debtor under this Chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this Chapter. There shall be presumption in favor of granting the relief requested by the debtor. This subsection was added to Section 707 by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). The addition of this provision was largely due to Congress’s concerns that Chapter 7 relief was increasingly being sought by debtors with the ability to repay a substantial portion of their debts. In re Grant, 51 B.R. 385, 389-392 (Bankr.N.D.Ohio 1985). See 130 Cong.Rec. H1810-12 (daily ed. March 21, 1984). Thus, it was designed to provide the bankruptcy court with the means to deny Chapter 7 relief to debtors unnecessarily discharging their consumer debts, while still guaranteeing a fresh start to those sincerely experiencing economic hardship. See generally, 130 Cong.Rec. at 1810-12. Whether the legislature effectively accomplished this noble purpose has been open to much debate. The vagueness of the statute and the sparse legislative history accompanying it have given rise to numerous questions concerning, inter alia; the proper procedure to be used to determine whether substantial abuse exists, the effect of the presumption in favor of debt- or, and the concept of substantial abuse. Fortunately, however, many courts have already addressed these questions at length. As a result, certain guiding principles have emerged, which will enable us to expeditiously answer the questions impacting on these issues. In the instant case, the procedure employed by the court was to notify debtor of the need to appear and show cause why the case should not be dismissed for substantial abuse. Debtor was properly notified and a hearing was held. At the hearing, the court received debtor’s explanation and the debtor was also given" }, { "docid": "4628830", "title": "", "text": "MEMORANDUM OPINION REGARDING DISMISSAL UNDER 11 U.S.C. § 707(b) STEVEN W. RHODES, Bankruptcy Judge. I. Because the Court was concerned that granting bankruptcy relief to the debtor, George C. Struggs, would be a substantial abuse of Chapter 7 of the Bankruptcy Code, the Court entered an order to appear and notice of hearing pursuant to 11 U.S.C. § 707(b). For the reasons stated herein, the Court concludes that the petition should be dismissed. The debtor’s petition lists no priority creditors, and four secured debts. The debtor’s credit union is owed $16,094 on a 1985 Cadillac Fleetwood automobile valued at $17,000, and $16,126 on a motor home valued at $26,000. First Federal Bank is owed $18,000 on a residence valued at $28,-000. Chrysler Credit is owed $8,200 on a 1985 Lebaron automobile valued at $6,000. The debtor’s petition lists $8,544 in unsecured debts. 11 U.S.C. § 707(b) provides: After notice and a hearing, the court, on its own motion and not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter [11 USCS §§ 701 et seq.] whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter [11 USCS §§ 701 et seq.]. There shall be a presumption in favor of granting the relief requested by the debtor. Thus under this statute, two issues are presented — whether the granting of relief would be a substantial abuse of Chapter 7, and whether the debtor’s debts are primarily consumer debts. II. This Court has previously addressed the standards for determining substantial abuse. In In re Bell, 56 B.R. 637, 641 (Bankr.E.D.Mich.1986) (Bell I), on remand 65 B.R. 575 (Bankr.E.D.Mich.1986) (Bell II), this Court held: This Court concludes that the primary, if not exclusive, factor to be considered in determining whether a debtor’s petition constitutes a substantial abuse of the Bankruptcy Code under Section 707(b) is whether the debtor will have sufficient income to repay a meaningful part of his or her debts, within the context" }, { "docid": "1143759", "title": "", "text": "the Court finds that, for purposes of determining dismissal under § 707(b), the Debtors have monthly expenses of approximately $4,627. 7. The Debtors’ stated monthly net income exceeds their monthly expenses by $3,373. 8. Given Debtors excess monthly income, it appears that they could pay 100% of their unsecured and undersecured claims in approximately 50 months; while Debtors could pay 73% of these claims in 36 months. 9. Debtors’ Petition and Schedules do not show any sudden economic hardship, serious illness, unemployment, or other unforeseen calamity giving rise to their bankruptcy filing. 10. Debtors have approximately $28,000 in IRA accounts which have been claimed as exempt, but which nonetheless could be used to pay the Debtors’ obligations. Conclusions of Law The determination of the issue at hand is governed by 11 U.S.C. § 707(b) which states that: After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter, whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. While there is no precise definition of what constitutes “substantial abuse” under § 707(b), the legislative history of that section indicates that the primary focus should be upon the Debtors’ disposable income and their ability to repay a substantial portion of their debt outside of a Chapter 7 proceeding. See: S.Rep. 98-65, 98th Cong. 1st Sess., 53-54 (1983). The majority of courts which have dealt with § 707(b) questions have found that a debtor’s ability to pay a significant portion of his/her debt outside of Chapter 7 without a substantial burden is the primary factor to be considered in determining whether “substantial abuse” exists in a given case. In re Kelly, 841 F.2d 908 (9th Cir.1988), and In re Johnson, 115 B.R. 159 (Bankr.S.D.Ill.1990). Considering the undisputed facts in" }, { "docid": "18771573", "title": "", "text": "U.S.C. § 707(b) Dismissal. (b) After notice and hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. DISCUSSION This case presents the primary issue of whether granting relief to this debtor would create a substantial abuse of the provisions of Chapter 7, thus requiring dismissal pursuant to 11 U.S.C. § 707(b). However, in order to resolve this issue another issue must be addressed first. This secondary issue is whether the Court should consider the income of a nondebtor spouse when making its inquiry and determination. It has been held that the income of a nondebtor spouse must be taken into consideration in order to determine whether a case constitutes a substantial abuse under the provisions of Chapter 7. See Matter of Strong, 84 B.R. 541 (Bankr.N.D.Ind.1988). In Strong, at page 543, the court compared the circumstances surrounding a substantial abuse inquiry to those of a Chapter 13 plan confirmation and undue hardship situations. The court concluded that in all three, the income of a nondebtor spouse has a bearing on the debtor’s financial situation. In In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984), the court considered the total income and expenses of both the debtor and the nondebtor spouse in determining that a substantial abuse of Chapter 7 was present. The resolution of the issue of substantial abuse, for purposes of this case, is then primarily focused on whether the Debtor’s income considering all of the circumstances would allow her to repay a substantial portion of her unsecured debt under a Chapter 13 plan. See In re Renner, 70 B.R. 27, 29 (Bankr.D.N.D.1987); In re Hudson, 56 B.R. 415, 419 (Bankr.N.D. Ohio 1985); In re Bell, 56 B.R. 637, 641 (Bankr.E.D.Mich.1986)." }, { "docid": "23164490", "title": "", "text": "auspices of a Chapter 13 plan. See also, In re Edwards, 50 B.R. 933 (Bkcy.S.D.N.Y.1985) at 937. It is well established that the provisions of Chapter 7 were intended to afford relief to a debtor when he finds himself in financial circumstances which threaten his immediate well-being. Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them. Since the availability of Chapter 7 presupposes that a debtor has made a reasonable effort to pay his debts, it would be a substantial abuse of that Chapter to allow a debtor to discharge those debts without first making a legitimate effort at repayment. Therefore, it must be concluded that a substantial abuse, for purposes of 11 U.S.C. Section 707(b), occurs when a debtor, who has filed under Chapter 7, has the ability to repay all or a substantial portion of his debts under the auspices of Title 11 Chapter 13. II Having defined the term “substantial abuse”, the Court must move to the consideration of the factors which should be reviewed when determining whether or not a Chapter 7 debtor has the ability to repay all or a substantial portion of his debts. Other Courts have identified certain factors which they have found relevant to that determination. See, In re Grant, supra. These factors include 1) the aggregate amount of the debtor’s income, 2) the ratio between monthly income and monthly expenses, 3) the percentage that could be paid to unsecured creditors, 4) the hardship that would be imposed while under a Chapter 13 plan, 5) the amount of unsecured creditors, 6) the amount of unsecured debt, and 7) the nature of the" }, { "docid": "23658745", "title": "", "text": "1325(b)) is impossible unless the income of a non-debtor spouse is included in the budget. Matter of Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). Similarly, various courts have included the non-filing spouse’s income when examining whether a debtor’s student loan should be discharged, due to undue hardship. In re Bagley, 4 B.R. 248, 249 (Bankr.D.Az.1980). In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). In this court’s estimation, the circumstances surrounding a substantial abuse inquiry are analogous to those present in Chapter 13 plan confirmation and undue hardship situations. All three necessitate a determination of how much disposable income, after subtracting reasonable and necessary expenses, will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debt- or’s financial situation. In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984). Accordingly, we conclude that the income of a non-debtor spouse must be taken into account in order to properly determine whether a case constitutes a substantial abuse of the provisions of Chapter 7. IV The foregoing resolution simplifies the task of deciding whether substantial abuse exists in the present case. In relevant part, 11 U.S.C. § 707(b) provides: (b) After notice and hearing, the court, on its own motion or on a motion by the U.S. Trustee, ... may dismiss a case filed by an individual debtor under this Chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this Chapter. There shall be presumption in favor of granting the relief requested by the debtor. This subsection was added to Section 707 by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). The addition of this provision was largely due to Congress’s concerns that Chapter 7 relief was increasingly being sought by debtors with the ability to repay a substantial portion of their debts. In re Grant, 51 B.R. 385, 389-392 (Bankr.N.D.Ohio 1985). See 130 Cong.Rec. H1810-12 (daily ed. March 21, 1984). Thus, it was designed to provide the bankruptcy court with the means to deny Chapter 7 relief" }, { "docid": "18845348", "title": "", "text": "clear: “It is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them.” In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985). Indeed, allowing a debtor to escape debts that he has the ability to repay would provide a “head start” rather than the “fresh start” envisioned in Chapter 7. In re Grant, 51 B.R. 385, 392 (Bankr.N.D.Ohio 1985). Accordingly, this court holds that Section 707(b) includes an ability to pay test, and a debt- or’s future income is a relevant consideration in that inquiry. This court is strengthened in its conclusion by the legislative history of Section 707(b). As the Court of Appeals for the Eighth Circuit has stated: In this case there were not committee reports on the final version of the Act. Therefore, the report on an earlier draft, S. 445, although far from conclusive, “is the best available evidence of Congress’s intent in enacting Section 707(b).” Kelly, 841 F.2d at 914 n. 7. This report states that Section 707(b) “upholds creditors’ interests in obtaining repayment where such repayment would not be a burden” on the debtor. S. Rep. No. 65 [98th Cong., 1st Sess.] 53 [ (1983) ]. “[I]f a debtor can meet his debts without difficulty as they come due, use of Chapter 7 would represent a substantia] abuse.” Id. at 54. This language seems to anticipate that a court, in considering “substantial abuse” under Section 707(b), will look to a debtor’s ability to repay his creditors out of his future income. In re Walton, 866 F.2d at 983. Moreover, this court agrees with the reasoning of the court of appeals in Walton, that in eliminating a mandatory future income threshold formula contained in an earlier version of the Act, “Congress simply replaced a rigid test with a flexible ‘substantial abuse’ standard that does not foreclose the courts from considering, inter alia, the debtor’s ability to pay his debts out of future income.” Id.; accord In re Kelly, 841 F.2d at 914. Therefore, this court concludes, on the basis of the emerging" }, { "docid": "2325752", "title": "", "text": "the Bankruptcy Code provides in part: 11 use § 707. Dismissal (b) After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. 11 U.S.C. § 707(Emphasis supplied). The United States Trustee has the burden of proving that a chapter 7 case should be dismissed under § 707(b). In re Cox, 249 B.R. 29, 31 (Bankr.N.D.Fla.2000). In evaluating motions to dismiss under § 707(b), courts in the Eleventh Circuit generally agree that the outcome should depend on the “totality of the circumstances.” “In the absence of controlling Eleventh Circuit authority, bankruptcy courts in this District have examined the ‘totality of the circumstances’ to determine whether to dismiss a case for ‘substantial abuse.’ ” In re Meyn, 330 B.R. 286, 288-89 (Bankr.M.D.Fla.2005) Courts also agree, however, that the primary factor in the analysis is whether the debtor has the ability to repay even a portion of his liabilities pursuant to a hypothetical chapter 13 plan. In re Meyn, 330 B.R. 286, 288-90; In re Leung, 311 B.R. 626, 630-31 (Bankr.S.D.Fla.2004); In re Brown, 301 B.R. 607, 611 (Bankr.M.D.Fla. 2003)(“A debtor’s ability to pay as measured by what he could pay in a hypothetical Chapter 13 case is the primary but not conclusive factor in determining whether there is a substantial abuse of Chapter 7.”). A. Ability to pay A debtor’s ability to repay a portion of his debts is the primary factor in determining whether a case represents a “substantial abuse” of Chapter 7. 1. Income To determine whether a debtor is able to pay a significant portion of his debts, it is necessary to consider the amount of the “disposable income” that would be available for such" }, { "docid": "5690754", "title": "", "text": "the individual to earn a living for himself and those dependent upon him is in the nature of a personal liberty quite as much if not more than it is a property right. To preserve its free exercise is of the utmost importance, not only because it is a fundamental private necessity, but because it is a matter of great public concern. From the viewpoint of the wage-earner there is little difference between not earning at all and earning wholly for a creditor.... The new opportunity in life and the clear field for future effort, which is the purpose of the Bankruptcy Act to afford the emancipated debtor, would be of little value to the wage-earner if he were obliged to face the necessity of devoting the whole or a considerable portion of his earnings for an indefinite time in the future to the payment of indebtedness incurred prior to his bankruptcy. Local Loan Co. v. Hunt, 292 U.S. 234, 245, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934); See Perez v. Campbell, 402 U.S. 637, 648, 91 S.Ct. 1704, 1710-11, 29 L.Ed.2d 233 (1971) and cases cited therein. Yet since enactment of the 1984 amendments, courts have sought to accommodate the Code’s emphasis on a “fresh start” for the debtor, with the disquieting realization that use of Chapter 7 by certain debtors strains equity to a breaking point. As expressed in In re Hudson, 56 B.R. 415, 419 (Bankr. N.D.Ohio 1985): It is well established that the provisions of Chapter 7 were intended to afford relief to a debtor when he finds himself in financial circumstances which threaten his immediate well-being, [citation omitted] If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them." }, { "docid": "1869665", "title": "", "text": "based upon the law cited above and the facts of this ease, this Court finds that the income of Debtor’s spouse should be taken into account when determining whether Debtor has the ability to repay her Creditors. In determining whether to grant relief to this Debtor would be a substantial abuse to the provisions of Chapter 7, this Court relies upon the principles established in Strong. In Strong, the Court states that the purpose of Section 707(b) is “to provide the bankruptcy court with the means to deny Chapter 7 relief to debtors unnecessarily discharging their consumer debts, while still guaranteeing a fresh start to those sincerely experiencing economic hardship.” Strong at 544. The United States Supreme Court held that the purpose of a Chapter 7 Bankruptcy is to afford relief to a debtor when he finds himself in financial circumstances which threaten his immediate well-being. Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); See also In re Hudson, 56 B.R. 415, 419 (Bkrtcy.N.D.Ohio 1985). “If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question.” Id. at 419; See also In re Krohn, 886 F.2d 123 (6th Cir.1989). The controlling case in the Sixth Circuit is In re Krohn, Id. In Krohn the court states that to determine whether substantial abuse exists a court should look at the totality of the circumstances to see whether: (1) Debtor “... is merely seeking an advantage over his creditors, or instead is ‘honest’ in the sense that his relationship with his creditors has been ... undeeeptive ...,” and (2) “... whether he is ‘needy5 in the sense that his financial predicament warrants the discharge of his debts in exchange for liquidation of his assets.” Id. at 126; See also 4 Collier on Bankruptcy at § 707-20. The court goes on to say that “[s]ubstantial abuse can be predicated upon either lack of honesty" }, { "docid": "23658752", "title": "", "text": "877-78; Walton, 69 B.R. at 154; Grant, 51 B.R. at 392-93. The foregoing guidelines will lead us through both the present and any future substantial abuse inquiries this court may undertake. In the instant case, the presumption in favor of debtor is overcome by the overwhelming importance of just one factor— debtor’s substantial disposable income. The plain and simple truth of the matter is that debtor’s monthly family income is $2,944.00 and their stated monthly expenses are $1,905.50. Without having to examine the propriety or reasonableness of any of the expenses, we feel that the substantial amount of disposable income, in and of itself, indicates that debtor could repay a significant portion of his unsecured debts, without undue hardship. If a debtor has the ability to repay all or a substantial portion of his debts within a reasonable time, while at the same time maintaining a reasonable standard of living, then he cannot be so financially destitute that his immediate welfare is in question. In the absence of such jeopardy, it is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them. Since the availability of Chapter 7 relief presupposes that a debtor has made a reasonable effort to pay his debts, it would be a substantial abuse of that Chapter to allow a debtor to discharge those debts without first making a legitimate effort at repayment. Hudson, 56 B.R. at 419. Debtor’s affidavit reveals surplus income of $1,038.50. He has unsecured debts in the sum of $11,247.30. Debtor could, thus, easily pay his unsecured creditors in full, within the three years contemplated by Chapter 13. Accordingly, to grant relief to debtor in this case would constitute a substantial abuse of the provisions and spirit of Chapter 7. Pursuant to 11 U.S.C. § 707(b), this case must be dismissed. IT IS THEREFORE ORDERED that this case be and hereby is dismissed. . This total includes the 1200.00 per month payment on account of a land contract which appears to be debtor’s only secured debt. . There is" }, { "docid": "10184466", "title": "", "text": "768-770, 95 S.Ct. 2457, 2468-69, 45 L.Ed.2d 522 (1975). The equal protection question with regard to § 707(b) is raised primarily because almost all of the case decisions construing this statute have read the provision to require dismissal as a substantial abuse of chapter 7 if the individual debtor involved has the ability to repay from future income the debts for which a chapter 7 discharge is sought. See, e.g., In re Walton, 69 B.R. 150, 154 (E.D.Mo.1986); Matter of Cord, 68 B.R. 5, 7 (Bankr.W.D.Mo.1986); In re Gaukler, 63 B.R. 224, 225 (Bankr.N.D.1986); In re Kress, 57 B.R. 874, 878 (Bankr.D.N.D.1985); In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985); In re Bell, 56 B.R. 637, 641, vacated, 65 B.R. 575 (Bankr.E.D.Mich.1986); In re Kelly, 57 B.R. 536 (Bankr.Ariz.1986), aff'd in effect, 841 F.2d. 908 (9th Cir.1988); In re Grant, 51 B.R. 385, 391 (Bankr.N.D.Ohio 1985); In re Edwards, 50 B.R. 933, 936-37 (Bankr.S.D.N.Y.1985); In re White, 49 B.R. 869, 874 (Bankr.W.D.N.C.1985). See also 4 Collier on Bankruptcy 11707.07 at 707-19 (15th ed. 1988). There is no question that Congress could have conditioned entitlement to chapter 7 discharge relief for all debtors who have a demonstrable ability to repay some or all of their debts within a reasonable time. It is established that there is no constitutional right to a bankruptcy discharge. United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 638, 34 L.Ed.2d 626 (1973). The constitutional question is raised here only because § 707(b) singles out for this restriction upon the right to a chapter 7 discharge only those individual debtors “whose debts are primarily consumer debts_” More specifically, the possible denial of equal protection stems from the fact that under the reported decisions construing the statute only debtors having such debts are required to show that they are not “abusing” the chapter because they need chapter 7 relief, i.e., that they do not have the ability to repay their debts out of future income. No logical reason appears evident, if § 707(b) is truly designed to deal with “abuse” of chapter 7 in terms" }, { "docid": "1143760", "title": "", "text": "an individual debtor under this chapter, whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. While there is no precise definition of what constitutes “substantial abuse” under § 707(b), the legislative history of that section indicates that the primary focus should be upon the Debtors’ disposable income and their ability to repay a substantial portion of their debt outside of a Chapter 7 proceeding. See: S.Rep. 98-65, 98th Cong. 1st Sess., 53-54 (1983). The majority of courts which have dealt with § 707(b) questions have found that a debtor’s ability to pay a significant portion of his/her debt outside of Chapter 7 without a substantial burden is the primary factor to be considered in determining whether “substantial abuse” exists in a given case. In re Kelly, 841 F.2d 908 (9th Cir.1988), and In re Johnson, 115 B.R. 159 (Bankr.S.D.Ill.1990). Considering the undisputed facts in the instant case, the Court can easily find that these Debtors have the ability to repay a substantial portion if not all of their debts within a reasonable amount of time outside of their Chapter 7 bankruptcy. The amount of debt repayment envisioned by the Court does not even take into consideration what Debtors could do with their debt on a tightened budget. Given the income of the Debtors in this case, the Court finds that there are many avenues available to Debtors to resolve their present financial difficulties, including private debt restructuring and budget adjustment. The Debtors' main argument against dismissal under § 707(b) is their undisputed ineligibility for Chapter 13 relief. See: 11 U.S.C. § 109. The Court has reviewed the case authority cited by Debtors of In re Mastroeni, 56 B.R. 456 (Bankr. S.D.N.Y.1985) supporting the Debtors’ position that dismissal under § 707(b) is improper where Debtors are ineligible for relief under Chapter 13 and Chapter 11 is meaningless. This Court does not agree with the result reached in Mastroeni as it" }, { "docid": "18845347", "title": "", "text": "(6th Cir.1989) (“Among the factors to be considered in deciding whether a debtor is needy is his ability to repay his debts out of future earnings.... That factor alone may be sufficient to warrant dismissal.”). In short, “[t]he rule adopted by the overwhelming majority of the courts considering the issue appears to be that a debtor’s ability to pay his debts will, standing alone, justify a section 707(b) dismissal.” In re Kelly, 841 F.2d at 915. Moreover, it is clear that a debtor’s future income is relevant to his ability to repay his debts, and the courts of appeals for the Sixth and Eighth Circuits, as well as a number of lower courts, have explicitly included fu ture income in the ability to pay inquiry. See, e.g., In re Krohn, 886 F.2d at 126; In re Walton, 866 F.2d at 985; In re Peluso, 72 B.R. 732, 737 (Bankr.N.D.N.Y.1987); In re Gaukler, 63 B.R. 224, 225 (Bankr.D.N.D.1986); In re Grant, 51 B.R. 385, 390-91 (Bankr.N.D.Ohio 1985). The reason for the ability to pay standard is clear: “It is morally and legally unconscionable that a person should be able to extinguish his obligations without first making a reasonable effort to fulfill them.” In re Hudson, 56 B.R. 415, 419 (Bankr.N.D.Ohio 1985). Indeed, allowing a debtor to escape debts that he has the ability to repay would provide a “head start” rather than the “fresh start” envisioned in Chapter 7. In re Grant, 51 B.R. 385, 392 (Bankr.N.D.Ohio 1985). Accordingly, this court holds that Section 707(b) includes an ability to pay test, and a debt- or’s future income is a relevant consideration in that inquiry. This court is strengthened in its conclusion by the legislative history of Section 707(b). As the Court of Appeals for the Eighth Circuit has stated: In this case there were not committee reports on the final version of the Act. Therefore, the report on an earlier draft, S. 445, although far from conclusive, “is the best available evidence of Congress’s intent in enacting Section 707(b).” Kelly, 841 F.2d at 914 n. 7. This report states that Section" }, { "docid": "4137146", "title": "", "text": "car payments 189 boat payments 149 grooming 20 vehicle maintenance 30 meals outside home 150 Based on the Debtor’s calculations, the difference between his monthly income and expenses is $331.09 in disposable income. The United States Trustee filed the instant motion, arguing that granting the Debtor Chapter 7 relief would be an abuse of the provisions of the Bankruptcy Code. Discussion Under § 707(b), After notice and a hearing, the court ... on a motion by the United States Trustee ... may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. 11 U.S.C. § 707(b). See In re Mills, 246 B.R. 395, 400 (Bankr.S.D.Cal.2000). The Trustee has the burden to prove that the Chapter 7 filing should be dismissed under this Code section. In the present case, the Debtor admits that his debt is primarily consumer debt. Thus, the Trustee must prove that granting the Debtor’s discharge would be a substantial abuse of Chapter 7. There are two basic approaches used by courts to determine what constitutes “substantial abuse.” The first approach looks to the debtor’s ability to repay his debts out of future income, as determined by his ability to fund a Chapter 13 plan. See In re Rushing, 93 B.R. 750, 752 (Bankr.N.D.Fla.1988); In re Dickerson, 193 B.R. 67, 71 (Bankr.M.D.Fla.1996) (citing cases from the Eight and Ninth Circuit Courts of Appeals). The second adopts a “totality of the circumstances” test which evaluates a list of numerous factors which are relevant to the debtor’s financial planning and could be evidence of substantial abuse. See In re Haddad, 246 B.R. 27, 33 (Bankr.S.D.N.Y.2000) (listing fifteen illustrative factors). Presently, there are no controlling cases in the Eleventh Circuit. Regardless of which approach is appropriate, the common thread among the circuits is that if the debtor has the ability to repay even a portion of his debts out of" } ]

[ { "docid": "3173520", "title": "", "text": "City of New Orleans, 516 F.2d 1051, 1056 (5th Cir. 1975); Breeland v. Security Ins. Co. of New Haven, 421 F.2d 918 (5th Cir. 1969), the first Fifth Circuit case to consider the matter in depth reached a contrary conclusion. In Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d l37 (1975), the court held that the res judicata effect of a prior federal court diversity judgment in a subsequent federal action must be measured under federal law. The court stated: “The importance of preserving the integrity of federal court judgments cannot be overemphasized — out of respect for the federal courts and for the policy of bringing litigation conclusively to an end. If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicata, federal courts would not be a reliable forum for final adjudication of a diversity litigant’s claims.” Id. at 716. The question in the instant case is not one of res judicata since the defendant here was not a party to the previous suit as that rule requires. Nevertheless, the holding of the Aerojet-General court is equally applicable to questions of collateral estoppel as well. That doctrine, of course, precludes a party to which it applies from disputing facts which it has already litigated. As such, the rule involves a question of the methods for determining disputed facts which, in a federal court, are to be resolved under federal principles. See, e. g., Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963) (right to jury trial in diversity case in federal court not dependent on state law); Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (which issues in lawsuit to be decided by jury determined under federal law); Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927 (5th Cir. 1976) (admissibility of evidence in diversity case determined by federal law). Moreover, the federal interests in bringing a lawsuit to a" } ]

[ { "docid": "19081382", "title": "", "text": "applied a complicated four part analysis of a judgment debt to determine the collateral estoppel effect of the judgment and the nature of the debt. The inquiry asks: (1) whether courts of the state whose court rendered the subject decision would apply collateral estoppel in a subsequent case, (2) whether the record meets the federal test for the application of collateral estoppel, (3) whether the prior non-bankruptcy trial was conducted without a view to predetermine dischargeability issues, and (4) whether each component of the judgment debt should be excepted from discharge. The judgment that forms the basis of the Complainants’ case was rendered by a Federal Court exercising diversity jurisdiction. The preclusion law applied in this case is based upon federal common law because the prior judgment was rendered by a Federal Court. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir.1981); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.) reh. den. 514 F.2d 1072 (5th Cir.), cert. den. 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Thus, federal common law supplies the standards for the first part of the Court’s inquiry above. These standards are the substance of the second part of the Court’s inquiry. Thus, analytically speaking, a Federal Court judgment alleged as a ground for excepting a debt from discharge, is not tested under the full faith and credit statute because federal common law determines the finality and scope of the judgment. Federal common law determines the collateral estoppel effect of a prior judgment according to the three prong test set out in White v. World Finance of Meridian. See Johnson v. United States, 576 F.2d 606 (5th Cir.1978); Cotton States Mut. Ins. Co. v. Anderson, 749 F.2d 663 (11th Cir.1984). The Court now takes up the three part test of White v. World Finance of Meridian. The special interrogatories submitted to the jury by the Federal District Court asked, inter alia, whether the Debtor conspired with James Malone and Leslie Hackfer to convert the assets of the Complainants by use of fraudulent representations. It is true that the jury found that neither" }, { "docid": "22908011", "title": "", "text": "practice. Indeed, in two of these cases, D’Ambra and Capital Airlines, the courts found no controlling state decisions on the matter and “predicted” state collateral estoppel in part by citing leading federal cases. In Capital Airlines, 267 F.Supp. at 303, the court noted prominently that “this court looks with favor on the modern trends in this area” — trends that have been largely accepted in the federal courts but rejected in Georgia. For these reasons, and because none of these opinions discussed the rationale for applying state collateral estoppel doctrine, we cannot view them as standing for the proposition that state doctrine controls the collateral estoppel effect given by one federal court to the judgments of another, where the state doctrine in question continues to apply a mutuality rule that has been substantially modified in the federal courts. Contrary to these cases, appellant here urges that we adopt the reasoning of Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), rehearing denied, 514 F.2d 1072, cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). In that diversity case we held that in diversity jurisdiction, as in federal-question jurisdiction, the federal doctrine of res judicata governs the question of whether a federal court is bound by the prior judgment of another federal court. Appellant argues that Aerojet controls the present case because actions in diversity are comparable to Tort Claims actions, since in each instance the federal court is generally bound to apply state law. If in a diversity case a federal court is nevertheless bound to give federal res judicata effect to a prior federal judgment, appellant urges, then by parity of reasoning a federal court should be similarly bound by a prior federal judgment in a Tort Claims action. On its part, the United States urges that Aerojet does not govern the present case. Its first argument is based on a distinction between res judicata and collateral estoppel. It points out that Aerojet concerned res judicata, whereas the present case concerns collateral estoppel. Thus, it argues, even supposing that Aerojet applied to Tort Claims actions, it" }, { "docid": "17903703", "title": "", "text": "under federal question jurisdiction, is offered here as collateral estoppel in Suit No. 2, a diversity case. Although Reimer suggests as a general proposition that federal law applies when deciding the effect of a prior federal judgment, our research turns up no recent Fifth Circuit cases squarely addressing the issue as framed above. “Federal law clearly governs the question whether a prior federal court judgment based on federal question jurisdiction is res judicata in a case also brought . .. under federal question jurisdiction.” Aerojet-General Corp. v. Askew, 511 F.2d 710, 715 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). See also Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977) (res judicata effect of prior case brought under federal question jurisdiction with pendent state claims governed by federal law in subsequent injunction action treated as “supplemental or ancillary” to first action for jurisdiction purposes). Federal law also governs when the first suit is a diversity suit, and the second suit is brought under both diversity and federal question jurisdiction “whether considered as a federal question case or a diversity case.” Aerojet-General, supra, at 718. See also Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir.1981). Finally, we have repeatedly held that federal res judicata rules apply in a diversity case in determining the effect of a prior diversity case. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 337 (5th Cir.1982); Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166 (5th Cir.1981); Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Cleckner v. Republic Van & Storage Co., 556 F.2d 766, 769 n. 4 (5th Cir.1977); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir.1976). These rules are the same for collateral estoppel as for other forms of res judicata. Stovall, supra, at" }, { "docid": "22908022", "title": "", "text": "the law which federal courts must apply. 511 F.2d at 717. In Aerojet we quoted at length the case of Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir. 1962), and we again note its reasoning: One of the strongest policies a court can have is that of determining the scope of its own judgments. [Citations omitted] It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. We see no reason for distinguishing Tort Claims actions from diversity actions in this respect. Our decision, of course, does not apply to the preclusive effects to be accorded prior state court decisions. In such cases we may well be bound, as we are in diversity cases, to give effect to state principles as to the preclusive effect of a prior state court decision. See Cleckner v. Republic Van & Storage Co., 556 F.2d 766 (5th Cir. 1977). We think, however, that the appropriate reading of the Tort Claims Act requires that we recognize, as we do in diversity actions, that “the federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction.” Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958). The effect that federal courts give to the judgments of other federal courts is an integral feature of that independent system. We think that Congress intended to leave intact that feature when it charged the federal courts with the duty of applying state law under the Federal Tort Claims Act." }, { "docid": "22143170", "title": "", "text": "this case. Even though the holding of Southwest I relied on state law, the effect of the case on parties and nonparties presents a question of federal law distinct from the local issues decided. This conclusion is consistent with Aerojet-General Corp. v. Askew, 5 Cir. 1975, 511 F.2d 710, 715-718, rehearing denied, 514 F.2d 1072, cert. denied 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137, in which the Court held that the res judicata effect of a diversity judgment also depended upon federal law. Aerojet stressed the importance of preserving rights generated by federal judgments: If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicata, federal courts would not be a reliable forum for final adjudication of a diversity litigant’s claims. This reasoning applies a fortiori in a non-diversity setting where the Erie doctrine has even less force than in Aerojet. B. BACKGROUND The principle of res judicata serves several policies important to our judicial system. By declaring an end to litigation, the doctrine adds certainty and stability to social institutions. This certainty in turn generates public respect for the courts. By preventing relitigation of issues, res judicata conserves judicial time and resources. It also supports several private interests, including avoidance of substantial litigation expenses, protection from harassment or coercion by lawsuit, and avoidance of conflicting rights and duties from inconsistent judgments. Recognizing the importance of these policies, federal courts have repeated ly held that judgments can bind persons not party to the litigation in question. Chicago, Rock Island & Pacific Railway Co. v. Schendel, 1926, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757; Heckman v. United States, 1912, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; Aerojet-General Corp. v. Askew, 5 Cir. 1975, 511 F.2d 710; Dudley v. Smith, 5 Cir. 1974, 504 F.2d 979, rehearing denied, 1975, 507 F.2d 1280; Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 5 Cir. 1968, 405 F.2d 958. At common law this preclusive effect extended only to those in privity with the parties. IB Moore’s Federal" }, { "docid": "21884371", "title": "", "text": "wisdom of distinguishing collateral estoppel cases from those covered under the actual holding). As Judge Medina has stated: One of the strongest policies a court can have is that of determining the scope of its own judgments. ... It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified, and enforced by the state acting through its own judicial establishments. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine [citations omitted] is not applicable here.. . . Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); see Aerojet-General, supra, 511 F.2d at 716-717; see also Degnan, supra, 85 Yale L.J. at 769. We agree. With respect to the appellants’ contention that the district court erred in its award of attorneys’ fees, “[t]he general rule is that the district court can award such fees .. . when an unfounded action or defense is maintained in bad faith, vexatiously, wantonly, or for oppressive reasons.” KinnearWeed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637 (5th Cir.) cert. den., 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971), citing 6 J. Moore, Federal Practice & Procedure § 54.77(2), at 1352 (2d ed. 1966). The district judge applied this standard and found that its requirements were met by Stovall’s actions in prosecuting this suit and justified the attorneys’ fees which he assessed against Stovall in favor of Price Waterhouse. In making the award Chief Judge Ready reasoned that Stovall might have been proceeding in ignorance rather than in bad faith prior to the decision in the Illinois Central case, but that from the moment of entry of judgment in that case Stovall was" }, { "docid": "23190550", "title": "", "text": "does evidence a clear intent to indemnify Air Canada against its own negligence. 1. Preclusive Effect of Findings in the Main Action Federal law governs the res judicata effect of a prior judgment in a diversity action in a subsequent diversity case. Aerojet-General Corp. v. Askew, 511 F.2d 710, 716 (5th Cir.1975), cert. denied sub nom. Metropolitan Dade County v. Aerojet-General Corp., 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1985). The general rule with regard to the preclusive effect of findings made in connection with a judgment for which contractual indemnity is sought is that an indemnitee is bound in an action against the indemnitor by all findings without which the original judgment against him could not have been rendered. Warren Petroleum Corp. v. JW. Green Contractors, 417 F.2d 242, 245-46 (5th Cir. 1969); accord, Maritime Overseas Corp. v. Northeast Petroleum Indus., Inc., 706 F.2d 349, 351 (1st Cir.1983); Annotation, Indemnity — Conclusiveness of Judgment, 24 A.L.R.2d 329, 330 (1952). Therefore, if the earlier judgment rests on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained. 24 A.L.R.2d at 330. Air Canada argues, however, that it should not be bound by the findings of gross negligence and willful misconduct in the Gibbs action because the judgment in that action was by default. It argues that, while a default judgment should have the res judicata effect of conclusiveness between the parties and their privies in a subsequent suit on the same cause of action, the better view is that it should not be given collateral estoppel effect in another cause of action. See Matter of McMillan, 579 F.2d 289, 292-93 (3rd Cir.1978) (refusing to give collateral estoppel effect to default judgment because issues were not actually litigated and noting that preponderant view is that default judgment has no collateral estoppel effect); IB Moore’s Federal Practice 0.444[2], at 798 (1984) (better view is that, as general proposition, default judgment should have no collateral estoppel effect). The arguments in favor of the view that default judgments should not be given collateral" }, { "docid": "3058103", "title": "", "text": "collection costs and reasonable attorney fees. In the case at bar, Karen Allen raises in greater detail essentially the same defense that she raised in the previous action; namely that the plaintiff violated the parties’ agreement concerning the sale of the ski equipment. More specifically, Ms. Allen alleges that Warrington misrepresented the nature of the equipment, failed timely to deliver it, and broke its promise to repurchase the equipment that the defendants were unable to sell. The plaintiff herein contends that these defenses are barred by the doctrine of res judicata and that, conse quently, summary judgment should be entered against Ms. Allen. As a threshold matter, the court will assume without deciding that federal law governs the res judicata effect of the prior federal court judgment. There is a split of authority over whether federal courts in a diversity action should apply state or federal law in determining the res judicata effect of a prior federal diversity judgment. Two circuit courts of appeals have expressly held that state law applies in this situation. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.), cert. denied, 459 U.S. 1087,103 S.Ct. 570, 74 L.Ed.2d 932 (1982); Gatewood v. Fiat, S.P.A., 617 F.2d 820, 826 n. 11 (D.C.Cir.1980). Conversely, courts of appeals in several other circuits have held that federal law should govern because. Silcox v. United Trucking Service, Inc., 687 F.2d 848, 852 (6th Cir.1982); Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962); see also Fraley v. American Cyanamid Co., 570 F.Supp. 497, 501-02 (D.C.Colo.1983); Restatement (Second) of Judgments § 87 (1982). The Court of Appeals for the Seventh Circuit in at least two cases has applied, without explanation, the state law on res judicata in situations like the present one. Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119,121 (7th Cir.1981); Morgan v. Inter-Continental Trading Corp., 360 F.2d 853, 855 (7th Cir.1966). A recent Seventh Circuit decision suggests, however, that a federal court sitting in a diversity" }, { "docid": "22893035", "title": "", "text": "and issue preclusion are the currently accepted terms for two different applications of the doctrine of res judicata. United States v. Athlone Indus., Inc., 746 F.2d 977, 983 n. 4 (3d Cir.1984). Issue preclusion is also referred to as collateral estoppel. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988). . Courts applying federal law generally hold that preclusion rules are the sort of procedural issues to which the Erie doctrine does not apply. As one court has remarked, \"[o]ne of the strongest policies a court can have is that of determining the scope of its own judgments. It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. ... [W]e think it would be a strange doctrine to allow a state to nullify the judgments of federal courts_” Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962) (citations omitted) (holding limited as recognized in Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713 n. 3 (2d Cir.1977)). See also Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Some courts apply federal law only to preclusion issues which are considered not to involve questions of substantive law. See, e.g., Answering Serv., Inc. v. Egan, 728 F.2d 1500, 1503-06 (D.C.Cir.1984). The example generally given of a substantive issue is the question of “privity.” See, e.g., Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 386-87 (10th Cir.1987); Harnett v. Billman, 800 F.2d 1308, 1312-13 (4th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). . Lubrizol cites to Northern Assurance Co. v. Grand View Building Ass'n, 203 U.S. 106, 27 S.Ct. 27, 51 L.Ed. 109 (1906), which permitted a suit for reformation of a contract despite an earlier judgment on the meaning of the contract. That case, however, was decided before the merger" }, { "docid": "21884368", "title": "", "text": "of the relevant facts in the earlier litigation. If, however, the Mississippi rule were the proper one, there could be no preclusion of the claims appellants now seek to maintain because of the lack of privity between Stovall and Price Waterhouse in the Illinois Central case. We believe that the prior decisions of this Court on the doctrines of res judicata and collateral estoppel require application of the federal rule when, as in this case, a party seeks to estop a claim from being raised in a diversity action brought in federal court on the basis of an earlier determination made in a federal court sitting pursuant to its diversity jurisdiction (irrespective of the fact that the new complaint also alleges a cause of action pursuant to a federal regulatory statute). It is unquestioned that this Court has unambiguously held that federal law determines the res judicata effect given a prior decision of a federal tribunal regardless of the bases of the court’s jurisdiction. Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.) reh. den. 514 F.2d 1072 (5th Cir.), cert. den’d 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). A later decision affirmed a district court which held that there should be no different result in collateral estoppel cases. Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion 537 F.2d 1142 (5th Cir. 1978). Still another panel with which we agree subsequently observed in dictum that it saw “no cogent reason for distinguishing those doctrines [of res judicata and collateral estoppel] in connection with the preclu-sive effects of a prior federal judgment on a subsequent federal suit and we regard Willis as settling the matter insofar as diversity cases are concerned.” Johnson v. United States, supra, 567 F.2d at 611. To hold otherwise would undermine the integrity and predictability of federal judgments. Most recently, this Court in a declaratory judgment action reaffirmed the rule and held that “federal procedure governs this diversity action and determines the applicability of collateral estoppel.” Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111, 115 (5th Cir. 1980). It" }, { "docid": "22908021", "title": "", "text": "cases are equally present in Tort Claims actions. First, Aerojet particularly stressed that: The importance of preserving the integrity of federal court judgments cannot be overemphasized — out of respect for the federal courts and for the policy of bringing litigation conclusively to an end. If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicatá, federal courts would not be a reliable forum for final adjudication of a diversity litigant’s claims. 511 F.2d at 716. This consideration applies equally to Tort Claims actions. Second, Aerojet noted that a number of federal procedural issues affect the application of res judicata in diversity cases. Similarly, as noted above, a number of federal matters affect federal court decisions in Tort Claims actions; as in Aerojet, We see no persuasive reason to look to state law for some elements of res judicata ... in light of the prominent influence of federal law on other elements of the doctrine. To do so would sacrifice the uniformity of the law which federal courts must apply. 511 F.2d at 717. In Aerojet we quoted at length the case of Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir. 1962), and we again note its reasoning: One of the strongest policies a court can have is that of determining the scope of its own judgments. [Citations omitted] It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. We see no reason for distinguishing Tort Claims actions from diversity actions" }, { "docid": "22876327", "title": "", "text": "See Kern v. Hettinger, supra. It has been suggested that there is no reason to apply federal law on some preclusion questions and state law on others and that federal law always determines the preclusive effect of a federal diversity judgment in a subsequent diversity action. See Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); accord Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir.1984), cert. denied, — U.S.—, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985); Harrison v. Celotex Corp., 583 F.Supp. 1497 (E.D.Tenn.1984); Fraley v. American Cyanamid Co., 570 F.Supp. 497 (D.Colo.1983); J. Aron & Co. v. Service Transportation Co., 515 F.Supp. 428 (D.Md.1981). Second, the Supreme' Court has required the federal courts to give state judgments such collateral estoppel, see Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), and res jiidicata, see Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), effect as would the courts of the rendering state. This rule applies even where the state judgment adjudicates federal questions. See St. John v. Wisconsin Employment Relations Board, 340 U.S. 411, 71 S.Ct. 375, 95 L.Ed. 386 (1951); Rollins v. Dwyer, 666 F.2d 141 (5th Cir.1982). Thus, a state court’s power to declare the victor in a particular controversy includes the power to define the scope of the victory. It would seem that federal courts must possess an equivalent power and that federal law should determine the preclusive effect of a federal judgment, without regard to the basis of jurisdiction. See Restatement (Second) of Judgments § 87 (1982); Degnan, Federalized Res Judicata, 85 Yale L.J. 741 (1976). However, since the instant controversy involves the preclusive effect of a prior federal question judgment, we need not decide the choice of law issue relative to a federal diversity judgment. . The Ninth Circuit has held that state law determines the preclusive effect of a federal criminal conviction in a subsequent diversity action. See St. Paul Fire & Marine" }, { "docid": "23263538", "title": "", "text": "duty to mitigate damages. We begin by noting that the federal law of collateral estoppel applies in this diversity action. Were we concerned with the collateral estoppel effects of a prior, state court determination, we would use the state’s law of collateral estoppel, but where the prior determination was also a federal diversity action, federal common law principles will apply. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111 (5th Cir. 1980); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976); see Johnson v. United States, 576 F.2d 606 (5th Cir. 1978); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). This point is important, because unlike federal common law, Mississippi state law does not permit the offensive use of collateral estoppel. Compare Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), with Ditta v. City of Clinton, 391 So.2d 627 (Miss.1980), as modified on denial of rehearing, id. (Miss.1981). Federal common law permits the use of collateral estoppel upon the showing of three necessary criteria: (1) that the issue at stake be identical to the one involved in prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action. Stovall, supra, at 540; Johnson, supra, at 615. Quaker does not contest that the issue of the enforceability of the Crutchfield letter was litigated in Workman. Rather, Quaker argues that collateral estoppel should not apply because (1) the issue decided was one of law and (2) the holding was an alternative ground of decision. Collateral Estoppel as to Issues of Law Quaker contends that estoppel should not apply because the erroneous holding of contractual liability is a pure question of law, and collateral estoppel does not apply to unmixed questions of law. For" }, { "docid": "21884370", "title": "", "text": "was noted therein that the prayed-for declaratory judgment would function “no differently ... than collateral estoppel used offensively,” and the Court thus altered the declaratory judgment which the district court had rendered by making it conform to the requirements of the federal rule as to issue preclusion. The Court found support for its decision in Johnson, Willis, and Aero-jet-General. Even to the extent that it may be argued that this Court has not previously squarely decided the issue currently before us (and, as indicated, this would be a very slender reed in the face of the various decisions which have treated this subject), we are persuaded that the better policy is that federal standards as to the applicability of collateral estoppel prevail in cases such as this one in which defendants-appellees seek to invoke the doctrine of collateral estoppel in one federal forum on the basis of facts decided previously in another case in the federal forum. See R. Degnan, Federalized Res Judicata, 85 Yale L.J. 741,746 (1976) (praising Aerojet-General, but doubting the necessity or wisdom of distinguishing collateral estoppel cases from those covered under the actual holding). As Judge Medina has stated: One of the strongest policies a court can have is that of determining the scope of its own judgments. ... It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified, and enforced by the state acting through its own judicial establishments. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine [citations omitted] is not applicable here.. . . Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); see Aerojet-General, supra, 511 F.2d at 716-717; see also Degnan, supra," }, { "docid": "16291817", "title": "", "text": "the owner of the same. Likewise, the judge of any court in which the trial of any criminal action for theft or any other illegal acquisition of property which is by law a penal offense is pending may, upon hearing, if it is proved to the satisfaction of the judge of said court that any person is a true owner of the property alleged to have been stolen, and which is in possession of a peace officer, by written order, direct the property to be restored to such owner. . Under Texas law, a mechanic’s lien cannot be asserted against a stolen vehicle unless the repairs were authorized by the true owner himself. Drake Ins. Co. v. King, 606 S.W.2d 812 (Tex. 1980). . The judgment in Reimer v. Sandefer could have no offensive collateral estoppel effect against defendants in this action, since they were not parties to the litigation deciding in favor of Reimer. “In both the offensive and defensive use situations, the party against whom the estoppel is asserted has litigated and lost in the earlier action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979). . When a federal court sitting in diversity is considering the collateral estoppel effect of a prior federal judgment, this circuit applies federal common law. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976). . Of course, in a federal question case relying on a prior federal judgment, the federal rules of collateral estoppel and res judicata apply. Blonder-Tongue, supra, 402 U.S. at 324, n.12, 91 S.Ct. at 1440, n.12. The problem here is whether in a federal question case relying on a previous state court judgment, § 1738 requires a federal court to use the res judicata and collateral estoppel doctrines of the state in which the prior judgment was entered, because this would" }, { "docid": "3058104", "title": "", "text": "v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.), cert. denied, 459 U.S. 1087,103 S.Ct. 570, 74 L.Ed.2d 932 (1982); Gatewood v. Fiat, S.P.A., 617 F.2d 820, 826 n. 11 (D.C.Cir.1980). Conversely, courts of appeals in several other circuits have held that federal law should govern because. Silcox v. United Trucking Service, Inc., 687 F.2d 848, 852 (6th Cir.1982); Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962); see also Fraley v. American Cyanamid Co., 570 F.Supp. 497, 501-02 (D.C.Colo.1983); Restatement (Second) of Judgments § 87 (1982). The Court of Appeals for the Seventh Circuit in at least two cases has applied, without explanation, the state law on res judicata in situations like the present one. Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119,121 (7th Cir.1981); Morgan v. Inter-Continental Trading Corp., 360 F.2d 853, 855 (7th Cir.1966). A recent Seventh Circuit decision suggests, however, that a federal court sitting in a diversity action should apply federal law to determine the preclusive effect due a prior federal diversity judgment. Morris v. Spratt, 768 F.2d 879, 882 (7th Cir.1985). This court is not required to take a position on this issue; the result in the case at bar is identical under both federal law and Wisconsin law. The broad concept of res judicata encompasses the doctrines of claim preclusion, or what is generally referred to as res judicata, and issue preclusion, generally termed collateral estoppel. See Jones v. City of Alton, 757 F.2d 878, 879 n. 1 (7th Cir.1985); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4402 (1981). (Hereinafter, claim and issue preclusion will be referred to respectively as res judicata and collateral estoppel). Under res judicata, a final judgment on the merits is a complete bar to future claims by parties or their privies based on the same cause of action. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Collateral estoppel bars the relitigation" }, { "docid": "16291818", "title": "", "text": "in the earlier action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979). . When a federal court sitting in diversity is considering the collateral estoppel effect of a prior federal judgment, this circuit applies federal common law. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976). . Of course, in a federal question case relying on a prior federal judgment, the federal rules of collateral estoppel and res judicata apply. Blonder-Tongue, supra, 402 U.S. at 324, n.12, 91 S.Ct. at 1440, n.12. The problem here is whether in a federal question case relying on a previous state court judgment, § 1738 requires a federal court to use the res judicata and collateral estoppel doctrines of the state in which the prior judgment was entered, because this would give the judgment the same full faith and credit it would have in the courts of that state. Erie considerations are not relevant here, since the state which produced the prior judgment is not necessarily the state in which the federal court sits. . The question is, however, a puzzling one. The Supreme Court in Blonder-Tongue stated that in nondiversity cases since Erie, the federal law of collateral estoppel applies. 402 U.S. at 324 n.12. 91 S.Ct. at 1440, n.12. On the other hand, § 1738 is part of the federal rules of res judicata, and it directs federal courts to look to state law to some extent. However, in Montana v. U. S., 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), a federal constitutional question had been litigated in the state courts of Montana. A subsequent litigation, in which the use of the Montana judgment as an estoppel was at issue, was heard by a three judge federal district court. On appeal, the Supreme Court looked to federal precedent for its decision," }, { "docid": "23372810", "title": "", "text": "court addressed a statute of limitations issue and recognized that the one year provision was applicable to the case. Second, even assuming that the six year statute of limitations is applicable to conversion of engine part designs, the alleged change in the law would be irrelevant because it would have occurred after a final judgment had been rendered. Appellant argues that when a change in law occurs between the time of two suits, res judicata and collateral estoppel cannot be used to bar the second suit. Appellant cites many federal cases for this proposition and appellee mistakenly assumes that Alabama law controls this issue. State law governs whether or not a state court judgment bars a subsequent federal diversity action. Commercial Box & Lumber Co., Inc. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d 766, 768 (5th Cir.1977). When a federal court sitting in diversity examines the collateral estoppel or res judicata effect of a prior federal judgment, based either on diversity or a federal question, it must apply federal common law. Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir.1981); Commercial Box & Lumber Co., Inc. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Southern Pacific Transportation Co. v. Smith Material, 616 F.2d 111, 115 (5th Cir.1980); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff'd without opinion, 537 F.2d 1142 (5th Cir.1976). See also Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). The general rule in this circuit, and throughout the nation, is that changes in the law after a final judgment do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based are subsequently overruled." }, { "docid": "22876326", "title": "", "text": "n. 17 (D.C.Cir.1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982); Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119, 122 (7th Cir.1981); Hayles v. Randall Motor Co., 455 F.2d 169, 173 (10th Cir.1971); Makariw v. Rinard, 336 F.2d 333, 334 (3d Cir.1964). However, Dupasseur v. Rochereau, supra, and its progeny may have been eroded by two factors. First, the Conformity Act, which required federal courts to apply state procedural rules and upon which the Supreme Court relied in Dupasseur, supra, 88 U.S. (21 Wall.) at 135, has been replaced by the Federal Rules of Civil Procedure. State courts will often be required to apply federal law on preclusion questions to vindicate the requirements of the Rules. See, e.g., 6 C. Wright & A. Miller, Federal Practice and Procedure § 1417 (1971) (Rule 13(a) bars a state claim that should have been asserted as a compulsory counterclaim in a prior federal action). At least as to such questions, federal law must also control where the second action is a federal diversity action. See Kern v. Hettinger, supra. It has been suggested that there is no reason to apply federal law on some preclusion questions and state law on others and that federal law always determines the preclusive effect of a federal diversity judgment in a subsequent diversity action. See Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); accord Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499 (11th Cir.1984), cert. denied, — U.S.—, 105 S.Ct. 966, 83 L.Ed.2d 970 (1985); Harrison v. Celotex Corp., 583 F.Supp. 1497 (E.D.Tenn.1984); Fraley v. American Cyanamid Co., 570 F.Supp. 497 (D.Colo.1983); J. Aron & Co. v. Service Transportation Co., 515 F.Supp. 428 (D.Md.1981). Second, the Supreme' Court has required the federal courts to give state judgments such collateral estoppel, see Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), and res jiidicata, see Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), effect" }, { "docid": "23210041", "title": "", "text": "of Ohio constituted “a prior final adjudication on the merits on the same cause of action between these parties”, entered judgment for Marathon. We affirm. The sole issue presented in this appeal is whether state or federal law governs the splitting of a cause of action. Appellant urges that the Erie doctrine requires the application of Michigan law in adjudicating the contract claim, citing McConnell v. Travelers Indemnity Co., 346 F.2d 219, 222 (5th Cir. 1965). See also Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Gentry v. Jett, 273 F.2d 388 (8th Cir. 1960); C. Wright, Law of Federal Courts § 78 at 386 (3d ed. 1976). Unlike the cases above, however, the district court here was obliged to consider the effect of a prior judgment issued by the federal district court in Ohio. As the Second Circuit observed in Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962): One of the strongest policies a court can have is that of determining the scope of its own judgments. Cf. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953. It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine, [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188] is not applicable here . Id. at 340. Accord, Aerojet General Corp. v. Askew, 511 F.2d 710, 716-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); see also" } ]

[ { "docid": "18463204", "title": "", "text": "MARIS, Circuit Judge The plaintiffs, David Smith and Erwin Gross, suing on behalf of themselves and all other taxpayers of the Virgin Islands, brought this suit in the District Court of the Virgin Islands against the Government of the Virgin Islands, Mario Lewis, its Commissioner of Property and Procurement, and Steadman Hodge, to declare illegal and void the conveyance of a piece of escheated property in St. Thomas by defendant Lewis to defendant Hodge for the sum of $200, and for injunctive relief. The defendants filed answers and moved for the dismissal of the suit upon the ground that the plaintiffs lacked the requisite capacity to maintain it. The district court granted the motion and dismissed the suit. The plaintiffs have appealed. 5 V.I.C. § 80 provides: “§ 80. Taxpayers’ suits “A taxpayer may maintain an action to restrain illegal or unauthorized acts .by a territorial officer or employee, or the wrongful disbursement of territorial funds.” We are satisfied that under this statute the plaintiffs had capacity to bring the present suit and that the district court erred in holding otherwise. The purpose of the statute is the salutary one of enabling taxpayers to obtain the aid of the district court to restrain any illegal acts of territorial authorities or any illegal diminution of territorial funds or property either through the unlawful creation of territorial debt, the unlawful expenditure of territorial funds or the unlawful alienation of territorial property. Such suits are freely entertained at common law in most of the states and territories and serve a very useful public purpose in keeping within legal bounds the actions of government officers, especially in dealing with the public property and funds. Particularly are such suits useful in territories, such as the Territory of the Virgin Islands, where the territorial governor is appointed from Washington and neither he nor the executive officers and employees appointed by him are answerable to the voters of the territory or subject to impeachment or removal by the elected territorial legislature. Buscaglia v. District Court of San Juan, 1 Cir. 1944, 145 F.2d 274, cert. den. 323" } ]

[ { "docid": "8744077", "title": "", "text": "and the uncontroverted facts establish that the plaintiffs were in the opinion of the court guilty of laches, the defendants will be entitled to judgment as a matter of law. The elements of laches which must be established in the present case are (1) delay on the part of the plaintiffs in bringing the suit, (2) the plaintiffs’ knowledge of the facts and (3) resulting prejudice to the defendants if the suit is not barred. Annotation, Laches in Taxpayer’s action, 71 A.L.R.2d 529. Lapse of time is consequential only as the delay causes prejudice. Compare In re National Molding Company, 3 Cir. 1956, 230 F.2d 69. See also 27 Am.Jur. 2d, Equity, § 163. It is inexcusable delay and resulting prejudice which are at the heart of the doctrine. With respect to these issues our Court of Appeals in Burke v. Gateway Clipper, Inc., 3 Cir. 1971, 441 F.2d 946, said (p. 949): “This Circuit requires the plaintiff to come forward and prove that his delay was excusable and that it did not unduly prejudice the defendant.” To the same effect are Mroz v. Dravo Corp., 3 Cir. 1970, 429 F.2d 1156; Lipfird v. Mississippi Valley Barge Line, 3 Cir. 1962, 310 F.2d 639. Upon consideration of the pleadings, admissions, affidavits and documents in this case I find that no genuine issues exist as to any of the following facts: Bill No. 5588 to provide for the construction of an oil refinery and other related facilities on the island of St. Croix was considered by the Legislature of the Virgin Islands at various times during the year 1972. It was finally passed by the Legislature on January 5, 1973 and was approved by the Governor and became law on January 10, 1973, as Act No. 3359. Accounts of the consideration, passage and approval of the bill were published in the Virgin Islands newspapers. The Act authorized the Governor to enter into a contract with the Virgin Islands Refinery Corporation, the intervening defendant here, in the form set forth in an appendix to the Act. Under the proposed agreement the Virgin" }, { "docid": "8744093", "title": "", "text": "$13,689,574.00 for land and $1,180,500.00 in its other operations. This is a record of very substantial prejudice indeed, far greater than that disclosed in many of the cases which have upheld the defense of laches in similar situations. See Stern v. Mayor and Alderman of Jersey City, 1930, 150 A. 9, 8 N.J.Misc. 307; Kirsch v. City of Abilene, 1926, 120 Kan. 749, 244 P. 1054; Paine v. Wells, 1918, 89 Or. 695, 175 P. 430; Carver v. City of Camden, 1909, 78 N.J.L. 293, 73 A. 47; Parker v. City of Concord, 1902, 71 N.H. 468, 52 A. 1095; Board of Com’rs. v. Dickinson, 1899, 153 Ind. 682, 53 N.E. 929; Fugate v. McManama, 1892, 50 Mo.App. 39. The Government of the Virgin Islands in support of its motion for summary judgment asserts that it, also, has been prejudiced by the plaintiffs’ delay in bringing suit in that 53 other bills passed by the Legislature under the same legal circumstances as Act No. 3359 would be open to the same legal challenge as Act No. 3359 if the suit goes forward. Moreover, urges the Government, the legislative goals spelled out in Act No. 3359 and quoted above have been severely retarded and delayed. These grounds I regard as indicating prejudice arising from the institution of the suit rather than from delay in bringing it. However, prejudice to the intervening defendant, The Virgin Islands Refinery Corporation, being clear, the inexcusable delay of the plaintiffs under the doctrine of laches bars as to both defendants the granting of the equitable relief which the plaintiffs seek in this action. Penn Mutual Life Ins. Co. v. Austin, 1898, 168 U.S. 685, 18 S.Ct. 223, 42 L. Ed. 626; Henry v. United States, 3 Cir. 1931, 46 F.2d 640; 30A C.J.S. Equity § 118, fn. 30. I need only add that, although I am aware that there has been, and continues to be, a strong division of public opinion on St. Croix as to the desirability of the refinery project which was authorized by Act No. 3359, this is not a subject which may" }, { "docid": "21380569", "title": "", "text": "MARIS, Circuit Judge. The plaintiffs, David Smith and Erwin Gross, suing on behalf of themselves and all other taxpayers of the Virgin Islands, brought this suit in the District Court, of the Virgin Islands against the Government of the Virgin Islands, Mario Lewis, its Commissioner of Property and Procurement, and Steadman Hodge, to declare illegal and void the conveyance of a piece of escheated property in St. Thomas by defendant Lewis to defendant. Hodge for the sum of $200, and for injunctive relief. The defendants filed answers and moved for the dismissal of the suit upon the ground that the plaintiffs lacked the requisite capacity to maintain it. The district court granted the motion and dismissed the suit. The plaintiffs have appealed. 5 V.I.C. § 80 provides: “§ 80. Taxpayers’ suits “A taxpayer may maintain an action to restrain illegal or unauthorized acts by a territorial officer or employee, or the wrongful disbursement of territorial funds.” We are satisfied that under this statute the plaintiffs had capacity to bring the present suit and that the district court erred in holding otherwise. The purpose of the statute is the salutary one of enabling taxpayers to obtain the aid of the district court to restrain any illegal acts of territorial authorities or any illegal diminution of territorial' funds or property either through the unlawful creation of territorial debt, the unlawful expenditure of territorial funds or the unlawful alienation of territorial property. Such suits are freely entertained at common law in most of the states and territories and serve a very useful public purpose in keeping within legal bounds the actions of government officers, especially in dealing with the public property and funds. Particularly are such suits useful in territories, such as the Territory of the Virgin Islands, where the territorial governor is appointed from Washington and neither he nor the executive officers and employees appointed by him are answerable to the voters of the territory or subject to impeachment or removal by the elected territorial legislature. Buscaglia v. District Court of San Juan, 1 Cir. 1944, 145 F.2d 274, cert. den. 323" }, { "docid": "21380570", "title": "", "text": "district court erred in holding otherwise. The purpose of the statute is the salutary one of enabling taxpayers to obtain the aid of the district court to restrain any illegal acts of territorial authorities or any illegal diminution of territorial' funds or property either through the unlawful creation of territorial debt, the unlawful expenditure of territorial funds or the unlawful alienation of territorial property. Such suits are freely entertained at common law in most of the states and territories and serve a very useful public purpose in keeping within legal bounds the actions of government officers, especially in dealing with the public property and funds. Particularly are such suits useful in territories, such as the Territory of the Virgin Islands, where the territorial governor is appointed from Washington and neither he nor the executive officers and employees appointed by him are answerable to the voters of the territory or subject to impeachment or removal by the elected territorial legislature. Buscaglia v. District Court of San Juan, 1 Cir. 1944, 145 F.2d 274, cert. den. 323 U.S. 793, 65 S.Ct. 434, 89 L.Ed. 632; Reynolds v. Wade, 9 Cir. 1957, 249 F.2d 73, 17 Alaska 401. In the Buscaglia case the Supreme Court of Puerto Rico and the Court of Appeals for the First Circuit upheld the right of a Puerto Rican taxpayer to maintain a suit to restrain the alleged illegal expenditure of insular funds, and in the Reynolds case the Court of Appeals for the Ninth Circuit upheld the right of a taxpayer in the Territory of Alaska to maintain a similar suit. The following statement by the Supreme Court of the Territory of Hawaii in Lucas v. American Haw. E. & C. Co., 1904, 16 Hawaii 80, 86-87, is equally pertinent: “ * * * The right of a taxpayer to bring suit to restrain a public officer from doing an illegal act has been settled in this jurisdiction since the case of Castle et al. v. Kapena, 5 Haw. 27 (1883). If the question could be considered an open one we should follow the rule laid down" }, { "docid": "16017585", "title": "", "text": "law shall be enacted “in any of the Territories of the United States,” has no significance in the Virgin Islands, whatever effect the final provision may have in territories which are not organized. Appellants attack paragraph 4 of the amended judgment on the ground that although the Attorney General was not joined as a party it nevertheless directs him to move for an order for the sale of the property under 15 V.I.Code § 126 in the event that the Government of the Virgin Islands desires to sell it. Paragraph 4 of the amended decree does not order any action to be taken by the Attorney General; it merely describes the statutory procedure which is to be followed if the escheated property is to be sold. It is not the judicial imposition of a duty but rather the judicial recognition of a duty which the statute has imposed on the Attorney General. Since the Attorney General was not treated as a party he need not have been joined as such and was not an indispensable party under Rule 19. Concluding as we do that Act No. 876 is invalid, we need not decide whether there was such a lack of evidence as to make clearly erroneous under Rule 52(a) the finding of the district judge that the purchase price of $200 was not “a reasonable price” as required by Act No. 876, or the effect of appellee’s claim that he had offered to pay a much higher price. Any sale of the property will be held under the provisions of the escheat law, which requires a public sale on competitive bidding. The judgment of the district court will be affirmed. . Until that stage of the suit there were two plaintiffs, Smith and one Gross. Later, after Gross’ death, the action, which was carried on by Gross’ executor, was dismissed as to him. . 5 V.I.Code § 80 provides: “A taxpayer may maintain an action to restrain illegal or unauthorized acts by a territorial officer or employee, or the wrongful disbursement of territorial funds.” . City of Bayonne v. Palmer," }, { "docid": "8744094", "title": "", "text": "No. 3359 if the suit goes forward. Moreover, urges the Government, the legislative goals spelled out in Act No. 3359 and quoted above have been severely retarded and delayed. These grounds I regard as indicating prejudice arising from the institution of the suit rather than from delay in bringing it. However, prejudice to the intervening defendant, The Virgin Islands Refinery Corporation, being clear, the inexcusable delay of the plaintiffs under the doctrine of laches bars as to both defendants the granting of the equitable relief which the plaintiffs seek in this action. Penn Mutual Life Ins. Co. v. Austin, 1898, 168 U.S. 685, 18 S.Ct. 223, 42 L. Ed. 626; Henry v. United States, 3 Cir. 1931, 46 F.2d 640; 30A C.J.S. Equity § 118, fn. 30. I need only add that, although I am aware that there has been, and continues to be, a strong division of public opinion on St. Croix as to the desirability of the refinery project which was authorized by Act No. 3359, this is not a subject which may be considered by the court in deciding the pending motions and I have not considered it. For it is basic to our constitutional system that the judicial branch of the government may not encroach on, or interfere with, the proper exercise of the powers which have been lawfully delegated to the legislative branch. By section 8(a) of the Revised Organic Act the authority and power of the Legislature of the Virgin Islands extends “to all rightful subjects of legislation” not inconsistent with the Act or the laws of the United States applicable to the Virgin Islands. The wisdom of a statute enacted under this broad grant of power is solely for the Legislature, as the representatives of the people, to decide, the function of the court being merely to determine whether the act violates any constitutional or statutory limitation upon the legislative power. At the original hearing of these motions the intervening defendant in answer to a request of the plaintiffs for the production of certain documents produced the documents for the inspection of the" }, { "docid": "56075", "title": "", "text": "the same for all real property subject to taxation in such municipality whether or not such properly is in cultivation and regardless of the use to which such property is put.” 48 U.S.C. § 1401a. In this litigation, the terms \"actual value” and \"fair market value” are synonymous and may be used interchangeably. Berne II, 262 F.Supp.2d at 555. . The Revised Organic Act of 1954 is an amended version of the 1936 Organic Act of the Virgin Islands (a separate statute distinct from the 1936 Act, 48 U.S.C. § 1401 (repealed 2007)). In the Revised Organic Act, Congress exercised its constitutional authority to regulate and define the government of the Virgin Islands. United States v. Virgin Islands, 363 F.3d 276, 286 (3d Cir.2004). . Under V.I.Code Ann. tit. 5 § 80, Berne has standing to bring suit on behalf of all similarly situated taxpayers against the Virgin Islands to \"restrain illegal or unauthorized acts by a territorial officer or employee, or the wrongful disbursement of territorial funds.” Berne II, 262 F.Supp.2d at 567. In Smith v. Government of the Virgin Islands, we held no specific threshold of interest or minimum amount of taxes paid was required to bring suit. 329 F.2d 131, 134 (3d Cir.1964). \"If there has been a violation or evasion of the law ... [,] damage is presumed to result to all taxpayers.” Id. at 133 (citation omitted). . Fed.R.Civ.P. 60(b) provides: \"On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.” . See 2008 V.I. Sess. Laws 6991 (\"The Office of the Tax Assessor may issue real property tax bills for the year 2006 during the fiscal year 2008.”). . Berne Corp. v. Gov’t of the V.I., 2008 WL 4319973, 2008 U.S. Dist. LEXIS 69246" }, { "docid": "13307802", "title": "", "text": "OPINION OF THE COURT ADAMS, Circuit Judge. This case presents a difficult problem regarding the effect of the antitrust laws upon the validity of the Virgin Islands Alcoholic Beverages Fair Trade Law, 8 V.I.C. §§ 150-160. The Legislature of the Virgin Islands enacted this law on February 10, 1969, but on March 12, 1969, before the law was to become effective, Norman’s on the Waterfront, Inc. (Norman’s) brought this suit in the United States District Court for the District of the Virgin Islands. Norman’s sought declaratory and injunctive relief against enforcement of the law by the Board of Alcoholic Beverages (Board). A hearing was postponed several times but the Board agreed not to enforce the law until the District Court made its ruling. On January 22, 1970, four corporations which were engaged in the importation and sale of liquor in the Virgin Islands — Charles Bellows & Co., Ltd., A. H. Riise Liquor Store, Inc., The General Trading Corporation and International Liquors, Inc. — moved to intervene as defendants in opposing the suit. Norman’s consented to the intervention and the District Court granted the motion on February 2, 1970. The United States filed a brief as amicus curiae both in the District Court and in this Court, urging that the relief sought by Norman’s be granted. On March 11, 1970, oral argument was held before the Honorable Almeric L. Christian. Judge Christian filed an opinion on August 14,1970, declaring the law violative of section 3 of the Sherman Act, 15 U.S.C. § 3, and finding Norman’s entitled to injunctive relief, 317 F.Supp. 247. A final order consistent with the opinion was entered on October 5, 1970. From the order, three of the intervenors appealed, but the Board of Alcoholic Beverages did not. I. The threshold question presented here is whether the intervenors have a right to appeal from the District Court’s order. If they have such a right, we must then decide whether the law, or portions of it, are valid under the McGuire Fair Trade Act, 15 U.S.C. § 45, or under the doctrine of governmental action enunciated in" }, { "docid": "8744070", "title": "", "text": "OPINION SUR MOTIONS FOR SUMMARY JUDGMENT MARIS, Circuit Judge, sitting by designation. -The plaintiffs, who are taxpayers of the Virgin Islands residing on St. Croix, brought the present suit on behalf of themselves and other taxpayers against the Government of the Virgin Islands seeking a judgment declaring that Act No. 3359, which was passed by the Legislature of the Virgin Islands on January 5, 1973 and approved by the Governor on January 10, 1973, is invalid, and asking for an injunction against action thereunder pendente lite. Act No. 3359 authorized an agreement between the Government of the Virgin Islands and the Virgin Islands Refinery Corporation, a private corporation, for the building of an oil refinery on'St. Croix and authorized special tax exemption, zoning and other changes in the law for the benefit of the corporation. The amended complaint was based upon the allegations that Act No. 3359 was a local or special territorial law in violation of 48 U. S.C.A. § 1471 and, in any event, that the Legislature was not legally in session when it was passed. The Virgin Islands Refinery Corporation has been permitted by this court to intervene as a party defendant. The defendant and the intervening defendant have each moved for a summary judgment in their favor upon the grounds that the plaintiffs were guilty of laches in delaying bringing the suit for eight months after the enactment of Act No. 3359 and that, in any event, they do not have standing to maintain the suit. The motion has been fully argued and is now ready for disposition. I shall consider first the question of standing. In Smith v. Government of Virgin Islands, 3 Cir., 329 F.2d 131, 4 V.I. 489, the Court of Appeals held that a taxpayer of the Virgin Islands has standing under 5 V.I.C. § 80 to maintain an action in the district court to restrain the illegal alienation of public property, the illegal expenditure of public funds or the illegal creation of public debt. The defendant and intervening defendant argue, however, that 5 V. I.C. § 80 authorizes only injunctive relief," }, { "docid": "8744090", "title": "", "text": "question presented by the defense of laches is whether there was inexcusable delay on the part of the plaintiffs in bringing their suit, after knowledge of the facts, which resulted in prejudice to the intervening defendant. A delay of nine months is, in my opinion, unreasonable unless excused by lack of knowledge or notice or other extenuating circumstances. Here the active plaintiff, Mr. Holmes, had prompt knowledge of the passage of Act No. 3359, and knew that the Virgin Islands Refinery Corporation was proceeding with preliminary activities in the refinery project authorized by that Act. And in any event a man of his admitted business experience would be bound to know that to meet the deadlines of the Act preliminary acquisition of land and other activities would have to be started promptly in a project as large as this one. But it is clear from his own affidavit that he proceeded in a most leisurely fashion to obtain a copy of the Act, to study it and to decide whether to bring the suit. “As time permitted” he did research on the Act, taking about three months for the work. The unreasonableness of Mr. Holmes having taken so much time to consider the validity of Act No. 3359 from the legal standpoint is highlighted by the fact that the bill to repeal that Act, an amended version of which was introduced by Senator Bryant of St. Croix, a member of the bar, in March (Bill No. 5719) spelled out in detail exactly the same two grounds of invalidity upon which the plaintiffs relied in the present suit which they filed nearly six months later. Moreover, Mr. Holmes took a month or more after reaching his legal conclusions to consider whether the Act was sufficiently bad, as compared to alternatives, to justify an attack on it in the hope of securing an Act which would provide a better deal for the Government and taxpayers of the Virgin Islands. Finally, he was concerned about the physical safety of Mrs. Holmes and himself because of community polarization following the Fountain Valley murders and" }, { "docid": "8744092", "title": "", "text": "the recession in St. Croix which followed. These, however, were conditions which existed in September, when he did bring suit, as well as in February or March, when the suit might have been brought. As early as April Mr. Holmes learned from a member of the Legislature that the repeal bill would not pass. He then knew that the project would go forward unless stopped by legal action. But such action was not sought until September. I am constrained to find and I conclude that the plaintiffs have failed to prove that their delay in bringing the suit was excusable. I have no difficulty in finding that the delay unduly prejudiced the intervening defendant, the Virgin Islands Refinery Corporation. For as we have seen during the nine months period between the passage of the Act and the institution of suit the corporation proceeded with the preliminary activities, notably the acquisition of land, necessary to get its refinery project in motion, ex pending $425,000.00 for land and $526,587.00 for other operational expenses and incurring liabilities of $13,689,574.00 for land and $1,180,500.00 in its other operations. This is a record of very substantial prejudice indeed, far greater than that disclosed in many of the cases which have upheld the defense of laches in similar situations. See Stern v. Mayor and Alderman of Jersey City, 1930, 150 A. 9, 8 N.J.Misc. 307; Kirsch v. City of Abilene, 1926, 120 Kan. 749, 244 P. 1054; Paine v. Wells, 1918, 89 Or. 695, 175 P. 430; Carver v. City of Camden, 1909, 78 N.J.L. 293, 73 A. 47; Parker v. City of Concord, 1902, 71 N.H. 468, 52 A. 1095; Board of Com’rs. v. Dickinson, 1899, 153 Ind. 682, 53 N.E. 929; Fugate v. McManama, 1892, 50 Mo.App. 39. The Government of the Virgin Islands in support of its motion for summary judgment asserts that it, also, has been prejudiced by the plaintiffs’ delay in bringing suit in that 53 other bills passed by the Legislature under the same legal circumstances as Act No. 3359 would be open to the same legal challenge as Act" }, { "docid": "21215691", "title": "", "text": "State bank has been permitted to maintain suit to restrain the Comptroller of the Currency from granting permission to a national bank to establish a branch that would compete with the plaintiff. Commercial State Bank of Roseville v. Gidney, D.C., 174 F.Supp. 770, affirmed 108 U.S.App.D.C. 37, 278 F.2d 871; National Bank of Detroit v. Wayne Oakland Bank, 252 F.2d 537 (6th C.). See also City of Chicago v. Atchison, T. & S. F. R. Co., 357 U.S. 77, 83, 78 S.Ct. 1063, 2 L.Ed.2d 1174. The line of cases on which the Government relies and that are well represented by Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374, and other similar decisions, are distinguishable. Their progenitor is a doctrine enunciated in Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L. Ed. 1078, to the effect that a person may not maintain a suit to enjoin the use of Government funds, even if such use is claimed to be in violation of law. The fact that the plaintiff is suffering an economic detriment from competition assisted by a loan or grant of Government funds, does not give him a standing to sue. This doctrine is entirely different from the principle that permits one to bring an action to enjoin an illegal activity on the part of a competitor, or to restrain the illegal authorization by the Government of an unlawful competitive undertaking. So, too, a justiciable controversy obviously exists justifying the Court in entertaining an action for a declaratory judgment. The plaintiffs claim that the defendant is authorizing national banks to conduct certain activities in violation of law and that these activities transgress the powers of the banks and that they are injurious to the plaintiffs. In any event the action has a double aspect, since it is a suit both for a declaratory judgment and an injunction. The Port of New York Authority, a political subdivision created jointly by the States of New York and New Jersey, has been permitted to intervene as a defendant in support of the" }, { "docid": "8744085", "title": "", "text": "opportunities. “In summary, I did not know or have reason to know of the matters and things set forth in the Amended Complaint, especially the Refinery legislation’s probable violation of 28 [48] USC 1471, until July 1973, and between that time and September 12, 1973, when this suit was instituted, I gave diligent and thoughtful consideration to the filing of this suit, weighing both the possible advantages for the taxpayers in the Virgin Islands and the possible personal disadvantages to myself and my wife.” Mrs. Holmes deposed that she became aware in the middle of 1972 that there was a proposal for a new refinery on St. Croix and, later, that the Legislature had passed the bill and that the Governor had signed it. She further deposed that some time in late July or early August 1973 Mr. Holmes told her that he had concluded that the Refinery Act was illegal and that he was contemplating bringing suit. After discussion she urged him to do so and told him she would join him as a plaintiff. The only actual knowledge which Mr. Holmes had of activities by the Virgin Islands Refinery Corporation between January 10, when Act No. 3359 was enacted, and September 12, 1973, when he and Mrs. Holmes filed the present suit, was through newspaper reports that the corporation was taking job applications in Christiansted and Frederiksted. However, he must have known as early as April or May, after he had obtained a copy of the Act, that the corporation was required, under the agreement annexed to the Act, to commence construction of the oil refinery within six months after having acquired the site of approximately 700 acres, but in no event later than June 30, 1974. He, therefore, had cause to believe, as was the fact, that the corporation had entered into negotiations with various landowners and had probably made expenditures and commitments for the purchase of various parcels of land to be included in the refinery site, as well as expenditures and commitments with respect to other preliminary aspects of the project, the ultimate cost of" }, { "docid": "8744071", "title": "", "text": "it was passed. The Virgin Islands Refinery Corporation has been permitted by this court to intervene as a party defendant. The defendant and the intervening defendant have each moved for a summary judgment in their favor upon the grounds that the plaintiffs were guilty of laches in delaying bringing the suit for eight months after the enactment of Act No. 3359 and that, in any event, they do not have standing to maintain the suit. The motion has been fully argued and is now ready for disposition. I shall consider first the question of standing. In Smith v. Government of Virgin Islands, 3 Cir., 329 F.2d 131, 4 V.I. 489, the Court of Appeals held that a taxpayer of the Virgin Islands has standing under 5 V.I.C. § 80 to maintain an action in the district court to restrain the illegal alienation of public property, the illegal expenditure of public funds or the illegal creation of public debt. The defendant and intervening defendant argue, however, that 5 V. I.C. § 80 authorizes only injunctive relief, while the present suit seeks a declaratory judgment. It may be a sufficient answer to this contention to note that the amended complaint asks for an injunction pendente lite. But regardless of that fact I am satisfied that a taxpayer in the Virgin Islands may maintain a suit in the district court for declaratory relief against illegal governmental action. As the Court of Appeals indicated in the Smith case, 5 V.I.C. § 80 is declaratory of the generally accepted common law rule that taxpayers may sue for relief against illegal governmental action. Normally such relief takes injunctive form, as indicated in 5 V.I.C. § 80. However, frequently a declaratory judgment, supplemented, if necessary, by a coercive order, may be an appropriate and quite adequate remedy. It was doubtless for this reason among many others that the Uniform Declaratory Judgments Act was adopted for the Virgin Islands as a part of the Virgin Islands Code. 5 V.I.C. §§ 1261-1272. The enactment of that uniform act superseded the federal Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202," }, { "docid": "8744089", "title": "", "text": "provided for the purchase by the corporation from Co-Build Companies, Inc. of approximately 222 acres for $4,224,574.-00 of which $150,000.00 was paid by the corporation on March 9, 1973. It thus appears that during the nine months period in question the corporation for the acquisition of approximately 578 acres of land for its refinery site expended $425,000.00 and committed itself to an additional liability of $13,689,574.00. The plaintiffs argue that with respect to the land which the corporation has purchased it will not suffer economic damage through the invalidation of Act No. 3359 since that land is choice industrial land which can be resold for enough to recover its entire cost. There is no evidence on this question, however, except the affidavit of Ralph A. De-Chabert who deposed that he and his co-owners of the 356 acre tract have been attempting to market it for the past several years and that the only firm offer ever received was that from the Virgin Islands Refinery Corporation. As I have pointed out earlier in this opinion the question presented by the defense of laches is whether there was inexcusable delay on the part of the plaintiffs in bringing their suit, after knowledge of the facts, which resulted in prejudice to the intervening defendant. A delay of nine months is, in my opinion, unreasonable unless excused by lack of knowledge or notice or other extenuating circumstances. Here the active plaintiff, Mr. Holmes, had prompt knowledge of the passage of Act No. 3359, and knew that the Virgin Islands Refinery Corporation was proceeding with preliminary activities in the refinery project authorized by that Act. And in any event a man of his admitted business experience would be bound to know that to meet the deadlines of the Act preliminary acquisition of land and other activities would have to be started promptly in a project as large as this one. But it is clear from his own affidavit that he proceeded in a most leisurely fashion to obtain a copy of the Act, to study it and to decide whether to bring the suit. “As" }, { "docid": "8744072", "title": "", "text": "while the present suit seeks a declaratory judgment. It may be a sufficient answer to this contention to note that the amended complaint asks for an injunction pendente lite. But regardless of that fact I am satisfied that a taxpayer in the Virgin Islands may maintain a suit in the district court for declaratory relief against illegal governmental action. As the Court of Appeals indicated in the Smith case, 5 V.I.C. § 80 is declaratory of the generally accepted common law rule that taxpayers may sue for relief against illegal governmental action. Normally such relief takes injunctive form, as indicated in 5 V.I.C. § 80. However, frequently a declaratory judgment, supplemented, if necessary, by a coercive order, may be an appropriate and quite adequate remedy. It was doubtless for this reason among many others that the Uniform Declaratory Judgments Act was adopted for the Virgin Islands as a part of the Virgin Islands Code. 5 V.I.C. §§ 1261-1272. The enactment of that uniform act superseded the federal Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202, which this court in Ottley v. DeJongh, D.C.1957, 149 F.Supp. 75, 3 V.I. 229, had previously held applicable in the territory. Under the uniform act the court is expressly authorized to grant further relief based on a declaratory judgment, 5 V.I. C. § 1268, which may take the form of coercive relief, such as an injunction, and may be included in the declaratory judgment itself. 9A Uniform Laws Annotated, Declaratory Judgments, § 1 annotation 211, § 8 annotation 11. It may fairly be said, therefore, that implicit in a suit for declaratory relief is a prayer for supplemental injunctive relief, if necessary to protect the plaintiff’s rights. Doubtless in many cases a judgment declaring governmental action illegal will itself have sufficient coercive effect to restrain further action by the public officers involved and thus render formal injunctive relief unnecessary. In either ease, however, the action is, in my opinion, in substance and effect “an action to restrain illegal or unauthorized acts” within the spirit of 5 V.I.C. § 80. For that section is a remedial" }, { "docid": "8744091", "title": "", "text": "time permitted” he did research on the Act, taking about three months for the work. The unreasonableness of Mr. Holmes having taken so much time to consider the validity of Act No. 3359 from the legal standpoint is highlighted by the fact that the bill to repeal that Act, an amended version of which was introduced by Senator Bryant of St. Croix, a member of the bar, in March (Bill No. 5719) spelled out in detail exactly the same two grounds of invalidity upon which the plaintiffs relied in the present suit which they filed nearly six months later. Moreover, Mr. Holmes took a month or more after reaching his legal conclusions to consider whether the Act was sufficiently bad, as compared to alternatives, to justify an attack on it in the hope of securing an Act which would provide a better deal for the Government and taxpayers of the Virgin Islands. Finally, he was concerned about the physical safety of Mrs. Holmes and himself because of community polarization following the Fountain Valley murders and the recession in St. Croix which followed. These, however, were conditions which existed in September, when he did bring suit, as well as in February or March, when the suit might have been brought. As early as April Mr. Holmes learned from a member of the Legislature that the repeal bill would not pass. He then knew that the project would go forward unless stopped by legal action. But such action was not sought until September. I am constrained to find and I conclude that the plaintiffs have failed to prove that their delay in bringing the suit was excusable. I have no difficulty in finding that the delay unduly prejudiced the intervening defendant, the Virgin Islands Refinery Corporation. For as we have seen during the nine months period between the passage of the Act and the institution of suit the corporation proceeded with the preliminary activities, notably the acquisition of land, necessary to get its refinery project in motion, ex pending $425,000.00 for land and $526,587.00 for other operational expenses and incurring liabilities of" }, { "docid": "8744074", "title": "", "text": "one, having the salutary purpose of affording to Virgin Islands taxpayers full and adequate relief from illegal actions of the territorial government and its officers. To construe it as authorizing only those suits whose primary prayer is for injunctive relief, strictly so-called, would surely be to exalt mechanically the narrow letter of the statute over its spirit and intent. This the court should not do. 82 C.J.S. Statutes § 325; 50 Am.Jur,Statutes § 302. I conclude that the plaintiffs have standing to maintain the present suit. I turn then to the question of laches. The parties agree, and I hold, that the issue of the plaintiffs’ laches may be determined on a motion for summary judgment. Hunt v. Pick, 10 Cir. 1957, 240 F.2d 782; 10 Wright & Miller, Federal Practice and Procedure, § 2734; 6 Moores Federal Practice, § 56.17[38]. The plaintiffs argue, however, that in an action equitable in nature, such as the present suit, even though the uncontroverted facts establish the plaintiffs’ laches the defendants would not be entitled to judgment as a matter of law, but only in the discretion of the court. Seaboard Surety v. Racine Screw Co., 7 Cir. 1953, 203 F.2d 532, is cited as authority for that proposition. That case does indeed so hold but I think it was wrongly decided. Certainly it has not been followed and, on the contrary, has been widely criticized. Booth v. Barber Transportation Co., 8 Cir. 1958, 256 F. 2d 927; Thickman v. Schunk, 1964, Wyo., 391 P.2d 939; Elias v. Manis, 1956, Tex.Civ.App., 292 S.W.2d 836; 6 Moores Federal Practice, §§ 56.01 [1], 56.05; 10 Wright & Miller Federal Practice and Procedure, §§ 2711, 2731, 2734. In the work last cited it is said [§ 2731, pp. 601-602]: “The Seaboard Surety case has not been followed, nor should it be. One of the primary aims of the federal rules has been the elimination of procedural differences between actions that historically were brought ‘at law,’ and those initiated ‘in equity.’ Summary procedures to abort nonmerito-rious litigation and avoid unnecessary expense and delay are important in equitable" }, { "docid": "8744073", "title": "", "text": "which this court in Ottley v. DeJongh, D.C.1957, 149 F.Supp. 75, 3 V.I. 229, had previously held applicable in the territory. Under the uniform act the court is expressly authorized to grant further relief based on a declaratory judgment, 5 V.I. C. § 1268, which may take the form of coercive relief, such as an injunction, and may be included in the declaratory judgment itself. 9A Uniform Laws Annotated, Declaratory Judgments, § 1 annotation 211, § 8 annotation 11. It may fairly be said, therefore, that implicit in a suit for declaratory relief is a prayer for supplemental injunctive relief, if necessary to protect the plaintiff’s rights. Doubtless in many cases a judgment declaring governmental action illegal will itself have sufficient coercive effect to restrain further action by the public officers involved and thus render formal injunctive relief unnecessary. In either ease, however, the action is, in my opinion, in substance and effect “an action to restrain illegal or unauthorized acts” within the spirit of 5 V.I.C. § 80. For that section is a remedial one, having the salutary purpose of affording to Virgin Islands taxpayers full and adequate relief from illegal actions of the territorial government and its officers. To construe it as authorizing only those suits whose primary prayer is for injunctive relief, strictly so-called, would surely be to exalt mechanically the narrow letter of the statute over its spirit and intent. This the court should not do. 82 C.J.S. Statutes § 325; 50 Am.Jur,Statutes § 302. I conclude that the plaintiffs have standing to maintain the present suit. I turn then to the question of laches. The parties agree, and I hold, that the issue of the plaintiffs’ laches may be determined on a motion for summary judgment. Hunt v. Pick, 10 Cir. 1957, 240 F.2d 782; 10 Wright & Miller, Federal Practice and Procedure, § 2734; 6 Moores Federal Practice, § 56.17[38]. The plaintiffs argue, however, that in an action equitable in nature, such as the present suit, even though the uncontroverted facts establish the plaintiffs’ laches the defendants would not be entitled to judgment as" }, { "docid": "21215692", "title": "", "text": "that the plaintiff is suffering an economic detriment from competition assisted by a loan or grant of Government funds, does not give him a standing to sue. This doctrine is entirely different from the principle that permits one to bring an action to enjoin an illegal activity on the part of a competitor, or to restrain the illegal authorization by the Government of an unlawful competitive undertaking. So, too, a justiciable controversy obviously exists justifying the Court in entertaining an action for a declaratory judgment. The plaintiffs claim that the defendant is authorizing national banks to conduct certain activities in violation of law and that these activities transgress the powers of the banks and that they are injurious to the plaintiffs. In any event the action has a double aspect, since it is a suit both for a declaratory judgment and an injunction. The Port of New York Authority, a political subdivision created jointly by the States of New York and New Jersey, has been permitted to intervene as a defendant in support of the Comptroller’s position. The relation of this intervenor to the controversy is, however, merely that of a potential issuer of bonds, desiring an opportunity to deal through commercial banks, as well as through investment bankers, apparently in order to increase competition among prospective underwriters and thereby possibly secure more desirable terms. Its interest in the present controversy is manifestly indirect and remote. Having completed the foregoing summary and considered possible procedural objections, we are ready to enter on an intensive discussion of the subject matter involved in this litigation. The tragic debacle that shook the banking community in the late 1920’s, led to a thorough, comprehensive and fruitful Congressional investigation. It was found that one of the principal causes of the catastrophe had been the growing practice of commercial banks to enter into the field of investment banking, that is underwriting issues of securities, and buying and selling securities to customers. The result was that undesirable securities were at times foisted upon the public, and that funds of banking institutions that should have been devoted to" } ]

[ { "docid": "18568035", "title": "", "text": "intangible, wherever located (with few stated exceptions) it is abundantly clear to this court that tax refunds and wage withholdings are part of the debtor’s estate. See 11 U.S.C.A. § 541 (1979). The legislative history of this section is clear that the result of Segal v. Rochelle, supra, is adopted by § 541 at least in so far as the right to a tax refund is property of the estate. H.R.Rep.No.95-595, 95 Cong., 1st Sess., 367, U.S.Code Cong. & Admin. News 1978, p. 5787. The House Report is also clear that § 541 has made a drastic change in the law in that the holding in Lockwood v. Exchange Bank, 190 U.S. 294, 23 S.Ct. 751, 47 L.Ed. 1061 (1903), which held that title to exempt property remained in the bankrupt and was not subject to administration by the trustee or bankruptcy court, has been overruled. Also overruled is the case of Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970), which held that the estate did not include accrued, but unpaid, vacation pay of the bankrupt. H.R.Rep.No.95-595, at 368. The import of section 541, as viewed in the light of its legislative history, is to create an estate which is much broader than that which was found under prior law (the “Act”). This is but one of the many major changes brought about by the Code. The conclusion that the debtor’s estate under the Code encompasses much more than that under the Act also finds support when the jurisdictional grant of the Bankruptcy Court is considered. Under the Act, jurisdiction was circumscribed to a large extent by the requirement that some matters be tried in forums other than the bankruptcy court. Bankruptcy Act § 23, former 11 U.S.C. § 46. Cf., § 2 of the Act, former 11 U.S.C. § 11. The new law, however, does not so hamstring the court. As found in 28 U.S.C. § 1471(a) and (c) (Supp.1980) the district court has “original and exclusive jurisdiction of all cases under title 11”, which jurisdiction is exercised by the bankruptcy court. From the" } ]

[ { "docid": "1113472", "title": "", "text": "the committee reports of both houses specifically point out: Paragraph (1) [of 11 U.S.C. § 541(a)] has the effect of overruling Lockwood v. Exchange Bank, 190 U.S. 294 [23 S.Ct. 751, 47 L.Ed. 1061] (1903), because it includes as property of the estate all property of the debtor, even that needed for a fresh start. After the property comes into the estate, then the debtor is permitted to exempt it under proposed 11 U.S.C. 522, and the court will have jurisdiction to determine what property may be exempted and what remains as property of the estate. The broad jurisdictional grant in proposed 28 U.S.C. 1334 [28 U.S.C. 1471(b) in the House Report] would have the effect of overruling Lockwood independently of the change made by this provision. S.Rep. No. 95-989, 95th Cong. 2d Sess. 82 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868; H.Rep. No. 95-595, 95th Cong. 1st Sess. 368 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6324. Although not specifically addressed in these committee reports or elsewhere in the readily available legislative history of the Reform Act, it inescapably follows that these provisions of the new law have also overruled the decisions in Espelund and Baldwin. The new § 541 estate does not have any greater rights in property than the debtor had. Consequently, that estate does not include the secured creditor’s interest but only the debtor’s interest in property subject to a security interest. Only the debtor’s equity passes into the estate. Thus, only the debtor’s equity is available to be exempted out of it. A trustee may bring an unperfected secured creditor’s interest into the estate pursuant to 11 U.S.C. § 550, after having successfully pursued his rights under 11 U.S.C. § 544(a), but there is a provision which specifically prohibits a debtor from exempting that interest out of the estate. 11 U.S.C. § 522(g). It is unfortunate that an apparently incomplete discussion of subsection (b) of § 522 in the Senate Judiciary Report has led one court to conclude that a debtor’s exemption rights in encumbered property is not limited to his equity." }, { "docid": "18596446", "title": "", "text": "a beneficial interest in a trust. That leaves the question under § 541(c)(2) of whether the spendthrift provision is enforceable against the bankruptcy trustee under § 541(c)(2). In a recent decision, Judge Clive Bare of this district discussed the answers given by the courts. In re Ridenour, 45 B.R. 72 (Bankr.E.D.Tenn.1984). Some courts have held that since the ERISA spendthrift restriction is enforceable against creditors outside of bankruptcy, then it is enforceable against the bankruptcy trustee. This means that a debtor’s interest in a qualified pension plan would always be excluded from the bankruptcy estate. Other courts have held that the spendthrift restriction in a qualified pension plan does not prevent the debtor’s interest from coming into the bankruptcy estate. This conclusion is based primarily on the legislative history of § 541(c)(2) and on § 522(d)(10)(E). The legislative history of § 541(c)(2) says that it was intended to preserve spendthrift trusts. S.Rep.No., 95-989, 95th Cong., 2d Sess. 83 (1978), U.S.Code Cong. & Admin. News 1978, p. 5787; H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 369 (1977), U.S.Code Cong. & Admin.News 1978, p. 5963. However, the spendthrift clause required in a qualified plan is not enough by itself to make a pension plan satisfy the state law requirements for a spendthrift trust. Section 522(d)(10)(E) provides a limited exemption for payments under a qualified pension plan. An exemption would not be needed if the payments were excluded from the estate by § 541(c)(2). Thus, even though § 541(c)(2) is broad enough to automatically exclude a debtor’s interest in a qualified pension plan, Congress may not have intended that result. Rather than say a qualified plan is never protected or is automatically protected under § 541(c)(2), the rule adopted by Judge Bare is that a qualified pension plan is protected if it meets the state law requirements for a spendthrift trust. In re Graham, 726 F.2d 1268 (8th Cir.1984). Of course, if the debtor’s interest is not excluded by § 541(c)(2) under this rule, it may still be exempt or partially exempt depending on what the exemption statutes allow. Referring to the state" }, { "docid": "13942403", "title": "", "text": "whether the property could have been transferred by the debtor or whether creditors could have reached it through judicial process. Id. at 1064. Because under Michigan law, a cause of action for bad faith refusal to settle was not assignable, the Sixth Circuit held that the claim did not belong to the bankruptcy estate. We believe the Fourth Circuit’s interpretation of Section 541 represents the better view. The Bankruptcy Reform Act eliminated the restrictive language of Section 70a(5) regarding those causes of action to which a bankruptcy trustee could take title. Congress exempted personal injury payments in 11 U.S.C. section 522(d)(11)(D)(19-82), and explicitly stated that exempt property is initially included in the bankruptcy estate under Section 541. H.R.Rep. No. 95-595, 95th Cong., 2d Sess. 368 (1977) reprinted, in Legislative History, 1978 U.S. Code Cong. & Ad.News 5787, 5963, 6324 [hereinafter Legislative History]. By adopting a comprehensive definition of property, the Bankruptcy Reform Act reduced the bankruptcy court’s cumbersome reliance on state law analysis for determining property to be included in the estate. 4 Collier on Bankruptcy, ¶ 541.02 at 541-10 (15th ed. 1985); In re Kwaak, 42 B.R. 599, 601 (Bankr.D.Maine 1984); Legislative History at 6136; Matter of Jones, 43 B.R. 1002, 1005 (N.D.Ind.1984) (“The Bankruptcy Code of 1978 broadened ‘what is included in the bankruptcy estate by eliminating Act concepts of leviability, transferability, vested title, and fresh start’ ”). See also In re Mills, 46 B.R. 525, 526 (S.D.Fla.1985) (unliquidated cause of action for personal injuries “property of the estate”). Thus, regardless of whether a personal injury claim is transferable or assignable under state law, such claims become part of the bankruptcy estate under section 541. C. Abandonment of Claim by the Trustee Fehl contends that even if her emotional distress claim did become part of the bankruptcy estate, the trustee in bankruptcy abandoned the claim to her. Fehl argues that the trustee’s act of signing the stipulation in 1982 represented an abandonment, and that the stipulation created a binding contract guaranteeing her the right to refile her claim without prejudice. Westinghouse contends that the purpose of the stipulation" }, { "docid": "10176469", "title": "", "text": "nature as would pass to the trustee in bankruptcy as property of the estate unless otherwise excluded from the estate as a spendthrift trust pursuant to § 541(c)(2). The stipulations filed by the parties indicate $19,208 in pre-petition contributions which fall within this category. The debtor’s argument to the contrary is unpersuasive. The debtor relies on Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970), In re Turpin, 644 F.2d 472 (5th Cir.1981), and In re Nunnally, 506 F.2d 1024 (5th Cir.1975), to persuade this Court to adopt a “balancing test” approach for making determinations of what is or is not property of the estate. This approach would have the courts balance the creditor’s interest in securing repayment against the debtor’s interest in a “fresh start.” See In re Turpin, 644 F.2d 472, 474 (5th Cir.1981). This argument ignores the legislative history of § 541 which states that subparagraph (a)(1) of that section overrules Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970) upon which Turpin relies. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 368 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6324; S.Rep. No. 95-989, 95th Cong., 2d Sess. 82 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5868; see also Goff v. Taylor, 706 F.2d 574 (5th Cir.1983); In re Clark, 18 B.R. 824 (Bankr.E.D.Tenn.1982). Moreover, Nun-nally and Turpin were decided under § 70(a) of the Bankruptcy Act and not under the more expansive definition of property of the estate contained in § 541. These decisions are not persuasive precedent in light of Congressional dissatisfaction with the Lines v. Frederick approach. See In re Clark, 18 B.R. 824, 829 (Bankr.E.D.Tenn.1982) (the court noting that Congress had effectively overruled Lines v. Frederick by enactment of § 541(a)(1) and holding that Turpin was both “inapposite” and “distinguishable” from a case under § 541 of the Code). This Court concludes that the debtor’s arguments with regard to the adoption of a balancing test for determining whether property becomes property of the estate must fail for the reason that" }, { "docid": "18894296", "title": "", "text": "and not the Debt- or, who has standing to pursue this adversary proceeding. While we agree that the Debtor must join the Trustee to pursue the instant proceeding, we will not dismiss the proceeding on this ground, as the Defendants request. Rather, we will require the Debtor to join the Trustee as a necessary party to this action. It is well established that a debtor’s estate is comprised of “all legal and equitable interests of the debtor in property as of the commencement of the case” wherever located or by whomever held. See 11 U.S.C. § 541(a)(1); and Cain v. Hyatt, 101 B.R. 440, 441-42 (E.D.Pa.1989). Section 541(a) of the Bankruptcy Code has been interpreted very broadly. The Supreme Court in United States v. Whiting Pools, Inc., 462 U.S. 198, 204, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983), held that, when interpreting § 541(a) and determining what constitutes property of the estate, that [b]oth the Congressional goal of encouraging reorganizations and Congress’ choice of methods to protect secured creditors suggest that Congress intended a broad range of property to be included in the estate. See also Carlton House, supra, 93 B.R. at 866 (debtor’s interest in escrowed rental payments was property of the estate); and In re Temp-Way Corp., 80 B.R. 699, 702 (Bankr.E.D.Pa.1987) (check in which debtor possessed only bare legal title was property of the debtor’s estate). Courts have consistently held that § 541(a) encompasses causes of action held by the debtor as of the commencement of the bankruptcy case. Cain, 101 B.R. at 442 and cases cited therein; Littles, supra, 90 B.R. at 705; and Crossley, supra, 90 B.R. at 690-91. See also 4 COLLIER ON BANKRUPTCY, ¶ 541.10, at 541-64 (15th ed. 1989) (“The estate created pursuant to section 541(a) includes causes of action belonging to the debtor at the time the case is commenced.”); H.R.REP. NO. 595, 95th Cong., 1st Sess. 367-68 (1977) (hereinafter “H.R. REP.”); and S. REP. NO. 989, 95th Cong., 2d Sess. 82-83 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868, 5869, 5963, 6322-6324 (hereinafter “S. REP.”). The general rule" }, { "docid": "21555659", "title": "", "text": "bankruptcy estate would not be dispositive in many cases; such property may be immune from turnover. See, e.g., 11 U.S.C. § 542 (property at issue of inconsequential value to the estate); Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948) (impossibility); In re World Communications, Inc., 72 B.R. 498 (D.C.Utah 1987) (trustee must be able to show adequate protection before compelling turnover from party with a security interest in the property); Acolyte Electric Corp. v. New York, 69 B.R. 155 (Bankr.E.D.N.Y.1986) (property must be identifiable); In re De Berry, 59 B.R. 891 (Bankr.E.D.N.Y.1986) (turnover may be barred by laches); In re FLR Co., 58 B.R. 632 (Bankr.W.D.Pa.1985) (property may be subject of legitimate dispute). Thus, the determination of whether certain property belongs to the estate should not be made outside of a specific controversy, such as a turnover action. III. Because the Roukas do not have standing to prosecute a turnover action and the action was improperly commenced by motion rather than complaint, we VACATE the orders of the district court and the bankruptcy court. SO ORDERED. . Under the Code, the debtor’s estate is “comprised ... of all legal or equitable interests of the debtor in property as of the commencement of the case.\" 11 U.S.C. § 541(a)(1). In general, property becomes part of the debtor estate regardless of any restrictions which may have been placed on its transfer. 11 U.S.C. § 541(c)(1). Section 541(c)(2), however, creates an exception to this general rule, providing that \"a restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable.” The legislative history of § 541(c)(2) indicates that Congress enacted the provision in order to exempt spendthrift trusts from the debtor’s estate. S.Rep. No. 95-989, 95th Cong., 2nd Sess. 83 (1978), reprinted in 1978 U.S.Code Cong. & Admin. News, 5787, 5869; H.R.Rep. No. 95-595, 95th Cong., 2nd Sess. 369 (1977), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6325. . To determine whether a trust qualifies as a spendthrift trust under Illinois law, courts" }, { "docid": "14109608", "title": "", "text": "per curiam sub nom. Greenblatt v. Ford, 638 F.2d 14 (4th Cir.1981). Cf. In re Ryan, 15 B.R. 514, Bankr.L.Rep. (CCH) ¶ 68,466 (Bankr.D.Md.1981). The Court is unconvinced that lottery winnings payable pursuant to an annuity contract are subject to a “restriction on the transfer of a beneficial interest of the debtor in a trust” within the meaning of the § 541(c)(2) limitation on the scope of § 541(a). Congress intended § 541(c)(2) to preserve “restrictions on transfer of a spendthrift trust.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 369 (1977); S.Rep.No. 95-989, 95th Cong., 2nd Sess. 83 (1978), U.S.Code Cong. & Admin. News 1978, p. 5787. Thus, the debtor’s interest in the lottery winnings are property of the estate subject to any valid exemption. 16 B.R. at 791. Judge Lebowitz also held that the lottery winnings could not be exempted as annuities “on account of illness, disability, death, age, or length of service” under Section 522(d)(10)(E). The instant case is factually similar to Miller in that the debtors in both cases won the Maryland lottery before they filed their bankruptcy petitions. However, Mr. Miller was a Chapter 7 debtor fighting with his trustee over the right to keep his winnings exempt from estate administration, while Mr. Keim is a Chapter 11 debtor in possession who would like to liquidate his future winnings to pay the nominal claims of his creditors, while retaining for himself the major portion of the proceeds that he could not have otherwise liquidated. POWERS OF A DEBTOR IN POSSESSION UNDER SECTION 363 As a debtor in possession with the same rights and powers of a trustee, see 11 U.S.C. § 1107(a), Mr. Keim may sell property of the estate. With respect to use, sale, or lease of property of the estate, Section 363(b)(1) of the Bankruptcy Code provides: 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)(1). WOODBRIDGE HAS STANDING TO BE HEARD As a creditor, Woodbridge is a party in interest" }, { "docid": "18773519", "title": "", "text": "or enjoyment at or after the termination of the interest renounced, passes as if the person renouncing had predeceased the decedent, or if the person renouncing is one designated to take pursuant to a power of appointment exercised by a testamentary instrument, as if the person renouncing had predeceased the donee of the power. In every case the renunciation relates back for all purposes to the date of death of the decedent or the donee, as the case may be. . On August 23, 1983, the debtor received a $4,706.13 personal property distribution from his grandfather’s estate. . The trustee has not brought an action to recover a fraudulent conveyance pursuant to 11 U.S.C.A. § 548 (West 1979). The court neither addresses nor decides any issue which might be raised by such an action. . Though the phrase \"property of the debtor\" in § 727(a)(2)(A) is not separately defined by the Bankruptcy Code, it is useful to analyze the phrase by reference to the section of the Code which defines the property interests of the debt- or that would become \"property of the estate” upon the filing of a petition in bankruptcy. This, of course, would not be appropriate in all situations because for some purposes the notions of \"property of the estate\" and \"property of the debtor\" are mutually exclusive. Compare, e.g., 11 U.S.C.A. §§ 362(a)(4) and (a)(5) (West 1979). 11 U.S.C.A. § 541(a)(1) (West 1979) brings into the bankruptcy estate “all legal or equitable interests of the debtor” subject only to a few enumerated exceptions. The scope of § 541 is broad and virtually all-encompassing. United States v. Whiting Pools, 462 U.S. 198, _, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515, 521 (1983). See also Waldschmidt v. CBS, Inc., 14 B.R. 309 (M.D.Tenn.1981). The legislative history provides that: The scope of this paragraph [§ 541(a)(1) ] is broad. It includes all kinds of property, including tangible or intangible property. H.R.Rep, No. 595, 95th Cong. 2d Sess. 37 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5998; S.Rep. No. 989, 95th Cong. 2d Sess. 82 (1978) U.S.Code Cong. &" }, { "docid": "23471949", "title": "", "text": "of overruling Lockwood v. Exchange Bank, 190 U.S. 294 [23 S.Ct. 751, 47 L.Ed. 1061] (1903), because it includes as property of the estate all property of the debtor, even that needed for a fresh start. After the property comes into the estate, then the debtor is permitted to exempt it under proposed 11 U.S.C. Sec. 522, and the Court will have jurisdiction to determine what property may be exempted and what remains as property of the estate Sic * * * S)C * House Report No. 95-595, 95th Cong. 1st Sess. (1977) 367-8; Senate Report No. 95-989, 95th Cong. 2nd Sess. (1978) 82-3, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6323. Section 541 is therefore a departure from its predecessor Section 70a, Bankruptcy Act, under which title to all property of the debtor, wherever located, except exempt property, vested in the trustee as of the date of bankruptcy. Hence, in spite of the breadth of Section 541, Congress has instructed not only that the right claimed must exist when bankruptcy is filed, but also that the right must be claimed via Section 522, Bankruptcy Code. Section 522 is the statutory authority that enables the debtor to divest the trustee of certain property which falls under his supervision at the inception of the case: “(b) Notwithstanding Section 541 of this title, an individual debtor may exempt from property of the estate either— (1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize * * ” The legislative history aids in interpreting the legislative enactment: # * * * * * “Under proposed 11 U.S.C. Section 541 all property of the debtor becomes property of the estate, but the debtor is permitted to exempt certain property from property of the estate under this section. Property may be exempt even if it is subject to a lien, but only the unencumbered portion of the property is to be counted in computing the ‘value’ of the property for the purposes of" }, { "docid": "16210647", "title": "", "text": "fall within § 541(c)(2), the bankruptcy court expressly adopted the analysis of the court in In re Barnes, 264 B.R. 415 (Bankr.E.D.Mich.2001), which held that § 541(c)(2) does not apply to the TIAA annuity at issue in that case because there is no trust relationship between the debtor and the TIAA. See Quinn, 299 B.R. at 453-54 (discussing Barnes). Apart from its reliance on Barnes, the bankruptcy court shored up its analysis by consulting the legislative history of § 541(c)(2) to determine its purpose, which, according to the bankruptcy court, is to exclude debtors’ interests in traditional spendthrift trusts from the bankruptcy estate: The question is why did Congress create this exception. The answer lies in the word “trust.” The legislative history indicates that the reference to “trust” in subsection (c)(2) is in fact a reference to spendthrift trusts. Paragraph (2) of subsection (c), however, preserves restrictions on transfer [sic] of a spendthrift trust to the extent that the restriction is enforceable under applicable bankruptcy law. H.R.Rep. No. 95-595, 369 (1977), see also S.Rep. No. 989, 83 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5963, 6325, 5787, 5869. The Supreme Court described these excerpts from the Congressional record as “brief’ and “meager.” Patterson v. Shumate, 504 U.S. 753, 761-62, 112 S.Ct. 2242, 2248, 119 L.Ed.2d 519 (1992). However, when considered in the overall context of what Congress intended to accomplish through the enactment of Section 541, the reference in the legislative history speaks volumes. Id. at 456. The bankruptcy court went on to conclude that Quinn’s interest in the TIAA annuity was not a beneficial interest in a trust, but rather was simply “contractual” because “the contributions were used to pay premiums on an annuity issued by the [TIAA],” and “[i]t is clear from the face page of the annuity purchased from TIAA that Debtor’s interest in the annuity is simply contractual.” Id. at 459. In its analysis of § 541(c)(2), this Court takes its direction from the Supreme Court’s decision in Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), which, except for referring to" }, { "docid": "1112491", "title": "", "text": "this Court for resolution. The issue we must decide is whether any future tort recovery that the Doemlings may receive should be considered property of the bankruptcy estate, and therefore available to satisfy the claims of the unsecured creditors. The debtors’ Amended Plan of Reorganization (“the Plan”) does not provide for the distribution of any recovery the Doemlings may receive in the event of a successful tort suit. Any money that the Doemlings might receive as a result of Mrs. Doeml-ing’s personal injury would therefore be unavailable to satisfy the claims of the Doemlings’ unsecured creditors. The Committee objected to the Plan because they believe that the tort suits, which accrued about 5 months after the filing of the petition, should be included in the debtors’ estate. To expedite the resolution of that issue, the Committee and the debtors sought to resolve the matter by stipulating to the facts and presenting legal arguments to the Bankruptcy Court. The Bankruptcy Court found that any potential recovery from tort suits arising out of Mrs. Doemling’s accident were not part of the bankruptcy estate. We agree and affirm. The bankruptcy estate was created when the debtors filed their voluntary Chapter 11 bankruptcy petition on August 9, 1988. See 11 U.S.C. § 541(a). Section 541(a) of the Bankruptcy Code defines the bankruptcy estate to include: “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The legislative history of section 541 indicates that Congress specifically intended to include causes of action within the meaning of “property”. See H.R.Rep. No. 95-595 at 367 (1977) reprinted in 1978 U.S.Code Cong. & Admin.News at 5787, 6323-6324; S.Rep. No. 95-989 at 82 (1978) reprinted in 1978 U.S.Code Cong. & Admin.News at 5868-5869. The Bankruptcy Code thus provides that money a debtor recovers as a result of a legal action may become part of the debtor’s estate. This general rule of Section 541(a)(1) is not, however, dispositive of the case sub judice. The accident that caused Mrs. Doemling’s injury did not occur until 5 months after the bankruptcy" }, { "docid": "4605666", "title": "", "text": "S.Ct. 3230, 97 L.Ed.2d 736 (1987). Therefore, from the plain language of the House report summary concerning property of the estate and the accompanying contextual implications, the inescapable conclusion is that the House intended an uninterrupted continuation of the treatment of interests in spendthrift trusts under the Bankruptcy Code. This legislative intent is bolstered by the particular references to proposed section 541(c)(2) in the corresponding House and Senate reports. Subsection (c) [of section 541] invalidates restrictions on the transfer of property of the debtor, in order that all of the interests of the debtor in property will become property of the estate. * * * Paragraph (2) of subsection (c), however, preserves restrictions on transfer of a spendthrift trust to the extent that the restriction is enforceable under applicable nonbankruptcy law. H.R.Rep. No. 95-595, supra, at 369, reprinted in, 1978 U.S.Code Cong. & Admin. News at 6325. The comparable section in the Senate report, which is almost identically worded, also explains that § 541(c)(2) “preserves restrictions on a transfer of a spendthrift trust [where] the restriction is enforceable [under] nonbankruptcy law.” S.Rep. No. 95-989, 95th Cong., 2d Sess., 83 (1978), reprinted in, 1978 U.S.Code Cong. & Admin.News 5787, 5869. These precise references to § 541(c)(2) further elucidate the clear intent of Congress to simply “preserve,” rather than enlarge, the recognized exception for spendthrift trusts under the Bankruptcy Act. See N.J. Policemen’s Benevolent Ass’n, supra, 806 F.2d at 456. Thus, the legislative history of § 541(c)(2) unequivocally supports the view that “applicable nonbankruptcy law” refers only to state spendthrift trust law. The cases upon which debtor principally relies in support of his position that “applicable nonbankruptcy law” includes ERISA are universally plagued with analytical shortcomings. For ease of reference, thes.e cases are generally divisible into two groups based upon the line of reasoning employed. The cases in the first group, In re Moore, supra; Warren v. G.M. Scott & Sons (In re Phillips), 34 B.R. 543 (Bankr.S.D.Ohio 1983); and In re Pruitt, 30 B.R. 330 (Bankr.D.Colo.1983) [collectively the “Moore group”], incorrectly presume that the phrase “applicable nonbankruptcy law” in § 541(c)(2)" }, { "docid": "18624171", "title": "", "text": "May 6, 1988. On October 8, 1988, the Trustee commenced the present adversary proceeding by filing a Complaint To Avoid Post-Peti tion Transfers, And To Recover The Property Distributed Or The Value Of Such Property. ANALYSIS With certain exceptions not relevant here, the trustee may avoid any postpetition transfer of “property of the estate” of a debtor that is not authorized under the Code or by the Court. 11 U.S.C. § 549(a). In addition, the trustee may recover, for the benefit of the estate, either the property transferred or the value of such property from the initial transferee or any immediate transferee of such initial transferee. 11 U.S.C. § 550(a). 11 U.S.C. § 541 defines, with substantial specificity, what kinds of property are “property of the estate”. Congress intended a broad range of property to be brought into the estate. U.S. v. Whiting Pools, 462 U.S. 198, 204, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983). Section 541 includes all kinds of property, both tangible and intangible, cause of action, and all other forms of property formerly specified in Section 70(a) of the old Bankruptcy Act. 4 Collier on Bankruptcy ¶ 541.01 at 541-5 (15th ed. 1989), citing to H.R.Rep. No. 595, 95th Cong., 1st Sess. 367-68 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 82-3 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. It even includes property needed for a debtor’s fresh start. Warren v. G.M. Scott & Sons, 34 B.R. 543, 544 (Bankr.S.D.Ohio 1983). Once property is included in the bankruptcy estate, the debtor may exempt it pursuant to 11 U.S.C. § 522. The Bankruptcy Court must then determine what property may be exempted and what remains property of the estate. See 4 Collier on Bankruptcy ¶ 541.01 at 541-6 (15th ed. 1989). When a claimed exemption is upheld by the court, the property so exempted no longer is considered property of the estate. See In re Gagnard, 17 B.R. 811, 813 (Bankr.D.La.1982). Defendants contend that the proceeds of the settlement were exempted from Debt- or’s estate, and hence are not subject to 11 U.S.C. §§ 549(a) and" }, { "docid": "11341883", "title": "", "text": "to ERISA requirements. See, e.g., Regan v. Ross, 691 F.2d 81 (2d Cir.1982); In re Threewitt, supra; but see In re Wood, 23 B.R. 552, 9 B.C.D. 935 (E.D.Tenn.1982). The rationale behind this determination is twofold. First, it appears from the legislative history that Section 541(c)(2) is limited in its application to true spendthrift trusts, as distinguished from ERISA-type trusts. See id.; see also House Report No. 95-595, 95th Cong., 1st Sess. (1977) 369, U.S.Code Cong. & Admin.News 1978, p. 5787; 4 Collier on Bankruptcy para. 541.23 (15th ed. 1982). Secondly, a construction of Section 541(c)(2) which excludes a debtor’s interest in an ERISA-type trust from property of the estate would render the federal exemption contained in 11 U.S.C. § 522(d)(10)(E)(iii) meaningless. See Re-gan v. Ross, supra; In re Threewitt, supra. As that section provides a federal exemption for a debtor’s interest in trusts such as the one in question, it is clear that Congress intended such an interest to become property of the estate. Indeed, one of the major changes effectuated by the present Bankruptcy Code is that all of debtor’s property comes into the estate initially, including that which may be thereafter exempted. See House Report No. 95-595, 95th Cong., 1st Sess. (1977) 368. This court approves the reasoning of the Regan and Threewitt cases, and it is therefore unnecessary to resolve what appears to be a conflict under Ohio law on the question of enforceability of spendthrift trust provisions. Compare Martin v. Martin, 54 Ohio St.2d 101, 374 N.E.2d 1384 (1978) with Sherrow v. Brookover, 174 Ohio St. 310, 189 N.E.2d 90 (1963). B Notwithstanding the above conclusion that debtor’s interest in the plan is an asset of the estate, Mahoning’s objection to confirmation is still subject to the challenge that debtor’s interest is wholly or partially exempt, as the liquidation test of Section 1325(a)(4) requires the court to value only non-exempt assets in making its determination. 5 Collier on Bankruptcy para. 1325.-01[2][D][b][iv] (15th ed. 1982). Only the Ohio exemption statute needs to be considered, as Ohio has exercised its option not to follow the federal scheme" }, { "docid": "23303276", "title": "", "text": "H.R.Rep.No.95-595, 95th Cong., 1st Sess. 368 (1977); S.Rep.No.95-989, 95th Cong., 2d Sess. 82 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. . 5 Collier on Bankruptcy ¶ 1322.01[4], at 1322-14 (15th ed. 1980), clarifies the interaction of Sections 1322(b)(9) and 1327(b) by noting that Section 1327(b) works by operation of law in the absence of specific provisions in the plan to the contrary whereas Section 1322(b)(9) gives ultimate control to the debtor to vest, by terms of a confirmed plan, property of the estate not only in himself but in another entity, as he may desire. . See In re Stark, 8 B.R. 233, 234 (N.D.Ohio 1981) (“Because the Debtor’s plan did not provide otherwise, all the property of the estate vested, upon confirmation, in the debtors. Consequently, no estate, as is provided for in 11 U.S.C. Section 1306 and Section 541, is in existence.”) See also 5 Collier on Bankruptcy ¶ 1327.01, at 1327-3 (15th ed. 1980) which notes that Section 1327(b) “implements a major theme of Chapter 13 by preserving to the debtor ownership, as well as possession, of all property, whether acquired before or during the Chapter 13 case except as otherwise required to effectuate the confirmed plan.” . See H.R.Rep.No.95-595, supra at 368, S.Rep. No.95-989, supra at 82. See also In re Lantz, 7 B.R. 77, 80 (S.D.Ohio 1980) (“one disposition of property of the estate is the allocation to the debtor to fulfill exemption rights”). . See H.R.Rep.No.95-595 supra at 429. (“It [paragraph 1322(b)(8)] permits the plan to provide for payment of claims from property of the estate or from property of the debtor, such as exempt property.” (Emphasis added.)) See also In re Devall, 9 B.R. 41 (M.D.Ala.1980); In re Buren, 6 B.R. 744, 6 B.C.D. 1130 (Bkrtcy.M.D.Tenn.1980). Both of these cases upheld the debtor’s right to designate social security payments, which may be claimed as exempt, as funding for Chapter 13 plans. They further emphasized that such a use of potentially exempt property is personal to the debtor and can be transferred freely in order to fund a plan at his option despite" }, { "docid": "18773520", "title": "", "text": "debt- or that would become \"property of the estate” upon the filing of a petition in bankruptcy. This, of course, would not be appropriate in all situations because for some purposes the notions of \"property of the estate\" and \"property of the debtor\" are mutually exclusive. Compare, e.g., 11 U.S.C.A. §§ 362(a)(4) and (a)(5) (West 1979). 11 U.S.C.A. § 541(a)(1) (West 1979) brings into the bankruptcy estate “all legal or equitable interests of the debtor” subject only to a few enumerated exceptions. The scope of § 541 is broad and virtually all-encompassing. United States v. Whiting Pools, 462 U.S. 198, _, 103 S.Ct. 2309, 2312, 76 L.Ed.2d 515, 521 (1983). See also Waldschmidt v. CBS, Inc., 14 B.R. 309 (M.D.Tenn.1981). The legislative history provides that: The scope of this paragraph [§ 541(a)(1) ] is broad. It includes all kinds of property, including tangible or intangible property. H.R.Rep, No. 595, 95th Cong. 2d Sess. 37 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5998; S.Rep. No. 989, 95th Cong. 2d Sess. 82 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868. The comprehensive definition was intended to remedy the “complicated melange of references to state law” that existed in determining property interests under the Bankruptcy Act. H.R.Rep. No. 595, 95th Cong. 2d Sess. 75 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 6035; S.Rep. No. 989, 95th Cong. 2d Sess. 82 (1978) U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868. Property under the Code includes any and all property regardless of whether it meets the tests of transferability or leviability imposed under pre-Code law. Hadley v. Koehler, 6 B.R. 203, 205 (Bankr.M.D.Fla.1980). A debtor’s interest becomes property of the estate, though it be novel or contingent, and notwithstanding that enjoyment of the interest is postponed. See Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 515, 15 L.Ed.2d 428 (1966); In re Dunn, 5 B.R. 156, 159 (Bankr.N.D.Tex.1980). [T]he term “property,” as invoked in the definition of a “transfer” in the context of ... proscription of fraudulent transfers, should be interpreted \"most generously” to incorporate anything of value which but" }, { "docid": "10176470", "title": "", "text": "See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 368 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6324; S.Rep. No. 95-989, 95th Cong., 2d Sess. 82 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5868; see also Goff v. Taylor, 706 F.2d 574 (5th Cir.1983); In re Clark, 18 B.R. 824 (Bankr.E.D.Tenn.1982). Moreover, Nun-nally and Turpin were decided under § 70(a) of the Bankruptcy Act and not under the more expansive definition of property of the estate contained in § 541. These decisions are not persuasive precedent in light of Congressional dissatisfaction with the Lines v. Frederick approach. See In re Clark, 18 B.R. 824, 829 (Bankr.E.D.Tenn.1982) (the court noting that Congress had effectively overruled Lines v. Frederick by enactment of § 541(a)(1) and holding that Turpin was both “inapposite” and “distinguishable” from a case under § 541 of the Code). This Court concludes that the debtor’s arguments with regard to the adoption of a balancing test for determining whether property becomes property of the estate must fail for the reason that it would conflict with the expression of intent by Congress in § 541 that all property of which the debtor has a legal or equitable interest should become property of the estate automatically, subject only to the exclusions expressly created by Congress in the Code. Thus, at the time of filing her petition in bankruptcy, the debtor had both a legal and equitable interest in the subject trust. It is these interests which passed to the trustee. B. The 11 U.S.C. § 541(c)(2) Exclusion for Spendthrift Trusts Congress provided in § 541(c)(1) that anti-alienation provisions restricting or conditioning the transfer of an interest in property of the debtor would not prevent such interest from becoming property of the estate. An exception was created for spendthrift trusts enforceable under applicable nonbankruptcy law. 11 U.S.C. § 541(c)(2). Whether Congress intended the term “applicable nonbankruptcy law” to include only state law or was instead meant to include other nonbankruptcy federal law such as ERISA has been the subject of discussion by some courts. See Lichstrahl v. Bankers Trust," }, { "docid": "1113471", "title": "", "text": "U.S.C. § 544(a) to the extent that property had been set apart as exempt. If a bankrupt were entitled to claim the entire property as exempt under the state exemption law made applicable in his bankruptcy case under § 6 of the old Act, former 11 U.S.C. § 24, he could protect an unperfected secured creditor from the trustee. In the Bankruptcy Reform Act of 1978, however, the Congress made a fundamental change in the approach to exempt property by providing that it first passes into the bankruptcy estate and then is exempted from it. Section 522(b) authorizes an individual debtor to “exempt from property of the estate” either property specified in a new federal bankruptcy exemption or property exempt from execution under non-bankruptcy law. The provision in the old Act specifically excepting exempt property from the estate has been deleted, so that the estate is now comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Congress has overruled Lockwood, as the committee reports of both houses specifically point out: Paragraph (1) [of 11 U.S.C. § 541(a)] has the effect of overruling Lockwood v. Exchange Bank, 190 U.S. 294 [23 S.Ct. 751, 47 L.Ed. 1061] (1903), because it includes as property of the estate all property of the debtor, even that needed for a fresh start. After the property comes into the estate, then the debtor is permitted to exempt it under proposed 11 U.S.C. 522, and the court will have jurisdiction to determine what property may be exempted and what remains as property of the estate. The broad jurisdictional grant in proposed 28 U.S.C. 1334 [28 U.S.C. 1471(b) in the House Report] would have the effect of overruling Lockwood independently of the change made by this provision. S.Rep. No. 95-989, 95th Cong. 2d Sess. 82 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5868; H.Rep. No. 95-595, 95th Cong. 1st Sess. 368 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6324. Although not specifically addressed in these committee reports or elsewhere in the readily available" }, { "docid": "18749760", "title": "", "text": "the estate is much broader under § 541 than under the Bankruptcy Act — In re Boyd, 11 B.R. 690 (Bankr.W.D.VA 1981) — and is intended to be all embracing. In re Ryan, 15 B.R. 514 (Bankr.D.MD 1981). It includes all kinds of property, wherever located, tangible or intangible, causes of action, and all other forms of property under former Section 70(a) of the Bankruptcy Act. H.R. No. 95-595, 95th Cong., 1st Sess. (1977), p. 367-68; U.S.Code & Admin.News 1978, p. 5787, 6323-6324. Section 541 clearly establishes that the estate is created when the petition is filed. This date is the critical time as of which the property comprising the estate is to be determined and the rights of others connected with the proceeding adjusted. 4 Collier on Bankruptcy, ¶ 541.04 at 541-22 (15th Ed.1985); Lockhart v. Garden City Bank & Trust Co., 116 F.2d 658 (2d Cir.1940). Generally, property not then owned but subsequently acquired by the Debtor does not become property of the estate. In re Dvoroznak, 38 B.R. 178 (Bankr.E.D.NY 1984); In re Newnum, 2 B.R. 500 (Bankr.D.AZ 1980); 4 Collier on Bankruptcy, ¶ 541.05 at 541-24 (15th Ed.1985); see, generally, Everett v. Judson, 228 U.S. 474, 33 S.Ct. 568, 57 L.Ed. 927 (1913); In re Jensen, 200 F.2d 58 (7th Cir.1952), cert. denied 345 U.S. 926, 73 S.Ct. 785, 97 L.Ed. 1357 (1953). Section 541(a)(6) further includes as property of the estate “all proceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after commencement of the case.” (emphasis added) In enacting § 541(a)(6), Congress, by the plain wording of the statute, intended to exclude from property of the estate such sums which are a result of and attributable to services performed by the debtor subsequent to filing of the Bankruptcy petition. See 4 Collier on Bankruptcy, ¶ 541.19 at 541-93; 2 Norton Bankruptcy Law & Practice, ¶ 29.12. The decisive factor in determining whether sums of money received post-petition constitute property of the estate is whether such income accrues from" }, { "docid": "17997300", "title": "", "text": "(15th ed. 1982). Thus, the Code broadens what is included in the bankruptcy estate by eliminating Act concepts of leviability, transferability, vested title and fresh start. See Rendleman, Liquidation Bankruptcy Under the ’78 Code, 21 Wm. & Mary L.Rev. 575, 594-95 (1980). See also 4 Collier on Bankruptcy, ¶ 541-22, at 541-84 (15th Ed.1982). (“Section 541(c)(1) further emphasizes the increased independence of the Code from nonbankruptcy law concerning property of the estate”). Section 541(a)(1) reflects the congressional intent to include all property of the debtor in the estate (even property necessary for a fresh start). S.Rep. No. 989, 95th Cong., 2d Sess. 82, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5868. Against this general background, the defendants argue that Section 541(c)(2) excepts both plans from being included as property of the estate. Section 541(c)(2) provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable under a case under this title.” 11 U.S.C. § 541(c)(2) (Supp. IV 1980). The Legislative History pertaining to Section 541(c)(2) reveals that this provision was intended to cover spendthrift trusts. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 369, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6325 (“Paragraph (2)of subsection (c), however, preserves restrictions on transfer of a spendthrift trust to the extent that the restriction is enforceable under applicable nonbankruptcy law.”). See also S.Rep. No. 989, 95th Cong., 2d Sess. 83, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5809. Under the Bankruptcy Code, it is well-settled that a debtor’s interest in a valid spendthrift trust is not to be included as property of the estate. In re Wood, 23 B.R. 552, 555 (Bkrtcy.E.D.Tenn.1982); In re Kelleher, 12 B.R. 896, 897 (Bkrtcy.M.D.Fla.1981). The defendants argue that since qualified ERISA plans must contain anti-alienation provisions, ERISA plans constitute a type of spendthrift trust which Section 541(c)(2) explicitly excepts from inclusion into the estate. Since the plans in this suit are qualified under the terms of ERI-SA, the defendants conclude that the Trustee’s complaint for turnover should be" } ]

[ { "docid": "23380203", "title": "", "text": "N.Y. 369, 373-74, 159 N.E. 173, 175 (1927) (Cardozo, J.). See Matter of Lipsky, 45 Misc.2d 320, 322, 256 N.Y.S.2d 429 (Sur.Ct. N.Y. County 1965); Harvey v. Morgan & Co., 166 Misc. 455, 457, 2 N.Y.S.2d 520 (Mun.Ct. Queens 1937), rev’d on other grounds, 25 N.Y.S.2d 636 (Sup.Ct.App. Term 2d Dep’t 1938), aff’d, 260 App.Div. 873, 23 N.Y.S.2d 844 (1940). Although there do not appear to be any New York cases directly on point, we hold that, as in the case of Schmidt’s contract claim, since appellees had a reasonable time to perform their alleged promises before they could be deemed in breach of promise, the six-year statute of limitations had not run on Schmidt’s claim of promissory estoppel. See, e. g., Van Hook v. Southern California Waiters Alliance, 158 Cal.App.2d 556, 323 P.2d 212, 217-221 (1958). Cf. Scheuer v. Scheuer, 308 N.Y. 447, 450, 126 N.E.2d 555 (1955); Crump v. Christy, supra, 28 A.D.2d at 1179-80, 284 N.Y.S.2d 472. Under New York law the essence of either a claim of promissory estoppel or a claim of breach of contract is a claim of damages for breach of promise. Finally, Schmidt alleges as his third claim that appellees’ promises were made with no intention to attempt their fulfillment and with the intent to cause him to rely on these misrepresentations to his detriment. CPLR § 213(8) (Supp.1976) provides that an action based on fraud must be brought within six years after the time the plaintiff “discovered the fraud, or could with reasonable diligency have discovered it.” However, this language must be read in conjunction with CPLR § 203(f) (Supp.1976), which provides that where a limitations period is computed from the time when facts were discovered or could with reasonable diligence have been discovered, the action must be commenced within two years after such actual or imputed discovery or “within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer.” Taken together, these two sections have been interpreted to mean that a fraud action must be commenced within six years from the commission of the" } ]

[ { "docid": "20395571", "title": "", "text": "Statute of Limitations running in a contract action.” Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 403, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993) (quotation omitted). Consequently, though St. John’s was ignorant of the existence of the Liquisolid Patents, the limitations period for its breach of contract claims began to run on the dates the Liquisolid Patents issued. Because more than six years elapsed between those dates (see Compl. ¶¶ 33-36) and Plaintiffs filing of this action in New York Supreme Court, these claims are untimely under the statute of limitations absent Plaintiffs ability to establish that it is entitled to equitable tolling of the statute of limitations. See infra Part II.I.2. b. Accrual of Claim for Breach of the Revenue-Sharing Obligations Bolton’s obligation to share licensing revenues with St. John’s, as alleged, constitutes a contract requiring continuing performance over a period of time, with each successive breach subject to its own limitations period. See Guilbert v. Gardner, 480 F.3d 140, 150 (2d Cir.2007). Bolton’s duty to share royalties with St. John’s arose when he received royalty payments made by the licensee. Therefore, Plaintiffs claims that Bolton breached the Bolton Research Agreement’s revenue-sharing provision are timely insofar as they are relate to royalties received by Bolton within six years of the commencement of this action. The revenue-sharing claims as to revenues received before that time period are barred by the statute of limitations absent Plaintiffs ability to establish that it is entitled to equitable tolling of the statute of limitations. See infra Part II.I.2. D. Fiduciary Duty 1. Allegation of a Fiduciary Relationship Plaintiff alleges that Bolton and Spireas owed it a fiduciary duty to disclose the patentability of the inventions produced in whole or in part from their research at St. John’s. Bolton and Spireas challenge the sufficiency of Plaintiffs allegation that Bolton and Spireas were fiduciaries of the University. (Bolton Mem. at 11-13; Spireas Mem. at 12-14.) They further argue that, as a matter of law, neither a professor nor a student can be a fiduciary of a university. (Spireas Mem. at 13-14; Bolton Mem. at" }, { "docid": "5940495", "title": "", "text": "distinguish between the actions of the defendants. The Amended Complaint contains no allegations that Mitnick appropriated plaintiffs assets, for example by transferring money directly to his own accounts. The only allegation against Mitnick is that he paid himself excessive fees, which is not properly characterized as an unlawful appropriation. Even if it were, such a claim would be time-barred. While plaintiff names this claim “unlawful appropriation” and thus argues that it falls under New York’s residual limitations period provision, the Court must “look to the essence of plaintiffs claim, not the label he chooses to tag onto it.” Korry v. Int’l Tel. & Tel. Corp., 444 F.Supp. 193, 195 (S.D.N.Y.1978) (“Any other rule would allow a plaintiff to evade the strictures of limitations statutes simply by clever characterization of claims.”). Unlawful appropriation is merely a renamed claim for conversion and is thus governed by the three-year statute of limitations applicable to injury to property. See N.Y. C.P.L.R. § 214(4); Gold Sun Shipping v. Ionian Transp., 245 A.D.2d 420, 666 N.Y.S.2d 677, 678 (N.Y.App.Div.1997). Therefore, to the extent plaintiff has any valid claims for unlawful appropriation against Mitnick, they are time-barred. 4. Breach of Contract (Claim VI) The statute of limitations for a cause of action based on a breach of contract is six years from the date of the breach. N.Y. C.P.L.R. § 213(2) (“action upon a contractual obligation or liability, express or implied” governed by six-year limitations period); Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985, 987 (1993) (breach of contract limitations period “begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury” (citations and internal quotation marks omitted)). Plaintiff alleges that “Berdon and Mitnick breached their business management contract with plaintiff by permitting Lewis and Entertainment to divert plaintiffs income into their accounts and by failing to advise plaintiff of this fact.” (Am.ComplY 43.) To the extent contractual terms actually govern the receipt and transfer of plaintiffs income, such that transfers to Lewis" }, { "docid": "19688069", "title": "", "text": "after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.” Thus, “[u]nder C.P.L.R. § 202, when a nonresident plaintiff sues upon a cause of action that arose outside of New York, the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued,” Stuart, 158 F.3d at 627; see also Muto v. CBS Corp., 668 F.3d 53, 57 (2d Cir.2012) (accord); Cantor Fitzgerald, 313 F.3d at 710 (accord). However, plaintiffs who are residents of the State of New York are “affected only by the New York limitations period.” Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 428 (2d Cir. 1970); see also Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y.2002) (“[WJhile non-New York State residents always face the shorter statute of limitations as between New York and the accrual state, New York State residents are always subject to the New York statute of limitations.”) Since the Lia parties are all residents of the State of New York, (Lia Compl., ¶¶ 1-3), New York’s statutes of limitations apply- 2. Claims for Specific Performance (First Cause of Action) and Breach of Contract (Eighth Cause of Action) The Lia parties’ first cause of action seeking specific performance of the 2003 and 2006 Agreements is a claim for breach of contract governed by the six (6)-year statute of limitations under Section 213(2) of the New York Civil Practice Law and Rules. See Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.2007); Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187 (N.Y.2012). Generally, under New York law, a cause of action for breach of contract accrues, and the limitations period begins to run, at the time of the breach, see Guilbert, 480 F.3d at" }, { "docid": "22475508", "title": "", "text": "not be aware of the breach or wrong to start the period running. See id. 599 N.Y.S.2d 501, 615 N.E.2d at 987. Where a contract does not speedy a date or time for performance, New York law implies a reasonable time period. See Schmidt v. McKay, 555 F.2d 30, 35 (2d Cir.1977); Lituchy v. Guinan Lithographic Co., 60 A.D.2d 622, 400 N.Y.S.2d 158, 159 (App.Div.1977). An acknowledgment or promise to perform a previously defaulted contract must be in writing to re-start the statute of limita tions. See N.Y. Gen. Oblig. Law § 17-101 ; Lew Morris Demolition Co. v. Bd. of Ed., 40 N.Y.2d 516, 387 N.Y.S.2d 409, 355 N.E.2d 369, 371 (1976); Perez v. Bangkok Bank, Ltd., No. 87 CIV. 1753, 1989 WL 13749, at *1 (S.D.N.Y. Feb. 10, 1989). If, however, a contract requires continuing performance over a period of time, each successive breach may begin the statute of limitations running anew. See Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606, 415 N.Y.S.2d 817, 389 N.E.2d 130, 132 (1979); Stalis v. Sugar Creek Stores, Inc., 295 A.D.2d 939, 744 N.Y.S.2d 586, 587-88 (App.Div.2002); Orville v. Newski Inc., 155 A.D.2d 799, 547 N.Y.S.2d 913, 914 (App.Div.1989); Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 430 N.Y.S.2d 179, 186 (App.Div.1980). Because Defendants’ obligation to contribute $10,000 per year to Plaintiffs pension fund was a continuing one, Plaintiffs claim that Defendants breached that obligation within six years of the commencement of this action is timely. See Orville, 547 N.Y.S.2d at 914 (holding that a contractual obligation to make minimum annual debt payments was a continuing obligation and a breach of contract occurred each year defendant failed to make minimum payment). 2. Statute of Frauds As an alternative basis for upholding the. district court’s dismissal of the contract action, moving Defendants assert that Plaintiffs breach of contract claim is barred by the Statute of Frauds. Although raised below, the district court did not address the Statute of Frauds argument in light of its determination that Plaintiffs action was time-barred. Moving Defendants argue that the employment agreement was either" }, { "docid": "626575", "title": "", "text": "that an action to collect sums due under a note must be commenced within six years. The statute of limitation applicable to an action on a note accrues on the date final payment became due on the subject debt. See Young v. Woodcrest Club, 188 Misc.2d 706, 729 N.Y.S.2d 855, 857 (N.Y.Sup.Ct.2001) (the right of action does not accrue upon a contract until payment thereunder is due by its terms); Anthony Marino Constr. Corp. v. F. & J. Sales Corp., 76 A.D.2d 767, 429 N.Y.S.2d 417 (N.Y.App. Div.1980) (Limitations period to recover on note began to run on the repayment date of the loan). The parties agree that pursuant to the terms of the Note, payment in full was due on April 9, 1992. The Creditor does not dispute that the six-year statute of limitations found in C.P.L.R. § 213 applies to his claim, and that absent any revival or extension of the pertinent limitation period, his claim would be time barred and unenforceable against the bankruptcy estate. The only issue in dispute is whether G.O.L. Section 17-101 extended the six year limitation period in the instant case. G.O.L. Section 17-101 states in pertinent part that “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules ...” In order to revive the statute of limitations, “the writing ... to constitute an acknowledgment, must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it.” See Lew Morris Demolition Co. v. Bd. Of Educ. of City of New York, 40 N.Y.2d 516, 521, 387 N.Y.S.2d 409, 355 N.E.2d 369 (1976)(emphasis added); GP Hemisphere Assoc., LLC v. Republic of Nicaragua, 2000 WL 1457025 (S.D.N.Y. Sept.28, 2000); Banco do Brasil v. State of Antigua, 268 A.D.2d 75, 707 N.Y.S.2d 151 (N.Y.App.Div.2000). “In determining the effectiveness of an acknowledgment, the critical" }, { "docid": "20669045", "title": "", "text": "Prac. L. § 213(2) (McKinney 1990), the district court dismissed the action as untimely. On appeal, ABB makes a number of arguments why the district court’s decision should be reversed. Initially, we note that state law generally controls issues relating to a state statute of limitations, Personis v. Oiler, 889 F.2d 424, 426 (2d Cir.1989), and we will therefore look to New York law to evaluate ABB’s arguments. First, ABB argues that the limitations period did not begin to run until the time ABB discovered, or should have discovered, that the contract was breached. However, in New York it is well settled that the statute of limitation for breach of contract begins to run from the day the contract was breached, not from the day the breach was discovered, or should have been discovered. See, e.g., Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-04, 599 N.Y.S.2d 501, 502-04, 615 N.E.2d 985, 986-88 (1993); National Life Ins. Co. v. Frank B. Hall & Co. of New York, 67 N.Y.2d 1021, 1023-24, 503 N.Y.S.2d 318, 319, 494 N.E.2d 449, 450 (1986). Here, the contract was breached, if at all, on the day it was executed, and therefore, the district court correctly concluded that the statute began to run on that day. Second, ABB argues that its breach of contract claim should be treated as a fraud claim, which claims are governed by a six year statute of limitations that begins to run when the fraud was discovered or should have been discovered, see N.Y. Civ. Prac. L. § 213(8). However, in its complaint, ABB made only a breach of contract claim and did not plead facts which would support a fraud claim. Therefore, ABB’s argument that its claim should be treated as a fraud claim must fail. Third, pursuant to CERCLA, 42 U.S.C. § 9659(d)(1), and RCRA, 42 U.S.C. § 6972(b)(1)(A) & (b)(2)(A), ABB sent notice of intent to sue letters to General Resistance and Zero-Max in May 1991. ABB argues these notification letters should be deemed as commencing its action. For this argument, ABB relies on N.Y. Civ. Prae." }, { "docid": "20395570", "title": "", "text": "the invention by its claims. See General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 369, 58 S.Ct. 899, 82 L.Ed. 1402 (1938) (“The claims measure the invention.”). Indeed, the sale or exploitation of patents was clearly a focus of the Agreements, and St. John’s would not have obtained the commercial benefit of the patent monopoly until a patent issued. (See, e.g., Lundin Decl. Ex. 3 (requiring Bolton to use his efforts to obtain reasonable revenue from patents)). Under the circumstances, the latest event triggering Bolton’s and Spireas’s duties of performance that can reasonably be inferred from the Complaint was the issuance of a patent by the PTO that disclosed an invention subject to the Agreements. Therefore, Bolton and Spireas were obligated to perform their assignment duties within a reasonable time following the issuance of each of the Liquisolid Patents, and they breached the Agreements when they failed to do so. Under New York law “knowledge of the occurrence of the wrong on the part of the plaintiff is not necessary to start the Statute of Limitations running in a contract action.” Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 403, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993) (quotation omitted). Consequently, though St. John’s was ignorant of the existence of the Liquisolid Patents, the limitations period for its breach of contract claims began to run on the dates the Liquisolid Patents issued. Because more than six years elapsed between those dates (see Compl. ¶¶ 33-36) and Plaintiffs filing of this action in New York Supreme Court, these claims are untimely under the statute of limitations absent Plaintiffs ability to establish that it is entitled to equitable tolling of the statute of limitations. See infra Part II.I.2. b. Accrual of Claim for Breach of the Revenue-Sharing Obligations Bolton’s obligation to share licensing revenues with St. John’s, as alleged, constitutes a contract requiring continuing performance over a period of time, with each successive breach subject to its own limitations period. See Guilbert v. Gardner, 480 F.3d 140, 150 (2d Cir.2007). Bolton’s duty to share royalties with St. John’s arose" }, { "docid": "19688075", "title": "", "text": "the Lia parties’ first cause of action as time-barred are denied. b. Breach of Contract Claim (Eighth Cause of Action) The Lia parties allege that Saporito failed to pay the entire amount due on “a demand note from N.R. Automotive, Inc. dated October 31, 2002.” (Lia Compl., ¶¶ 91-93). In New York, the statute of limitations for a claim to recover on a promissory note is six (6) years. Morrison v. Zaglool, 88 A.D.3d 856, 858, 931 N.Y.S.2d 82 (2d Dept.2011); Sce v. Ach, 56 A.D.3d 457, 458, 867 N.Y.S.2d 140 (2d Dept.2008); see also Barash v. Siler, 124 Fed.Appx. 689, 690 (2d Cir.2005) (summary order). “A cause of action to recover on a note which is payable on demand accrues at the time of its execution.” Morrison, 88 A.D.3d at 858, 931 N.Y.S.2d 82; see also Parsons & Whittemore Enterprises Corp. v. Schwartz, 387 F.Supp.2d 368, 377 (S.D.N.Y.2005); Phoenix Acquisition Corp. v. Campcore, Inc., 81 N.Y.2d 138, 143, 596 N.Y.S.2d 752, 612 N.E.2d 1219 (N.Y.1993). Partial payment of a prior existing debt does not toll the limitations period unless “there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.” Comerica Bank, N.A. v. Benedict, 39 A.D.3d 456, 457, 833 N.Y.S.2d 588 (2d Dept.2007) (citing Lew Morris Demolition Co. v. Board of Education of City of New York, 40 N.Y.2d 516, 521, 387 N.Y.S.2d 409, 355 N.E.2d 369 (N.Y.1976)); see also Schmidt v. Polish People’s Republic, 742 F.2d 67, 72 (2d Cir.1984) (holding that the statute of limitations “can be tolled only if a debtor pays the creditor under circumstances indicating an unequivocal intention to pay the balance.”) Since the demand note from N.R. Automotive, Inc. to Saporito was executed on October 31, 2002, any claim to recover thereon was required to be commenced on or before October 31, 2008. The Lia parties’ allegation that Saporito made a partial payment on the note on or about" }, { "docid": "5940496", "title": "", "text": "the extent plaintiff has any valid claims for unlawful appropriation against Mitnick, they are time-barred. 4. Breach of Contract (Claim VI) The statute of limitations for a cause of action based on a breach of contract is six years from the date of the breach. N.Y. C.P.L.R. § 213(2) (“action upon a contractual obligation or liability, express or implied” governed by six-year limitations period); Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985, 987 (1993) (breach of contract limitations period “begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury” (citations and internal quotation marks omitted)). Plaintiff alleges that “Berdon and Mitnick breached their business management contract with plaintiff by permitting Lewis and Entertainment to divert plaintiffs income into their accounts and by failing to advise plaintiff of this fact.” (Am.ComplY 43.) To the extent contractual terms actually govern the receipt and transfer of plaintiffs income, such that transfers to Lewis and his company breached those terms, then such breaches would be subject to a six-year limitations period. However, only breaches (that is, transfers in contraven tion of contractual terms) occurring within six years from the date this lawsuit was filed, or after January 28, 1999, are within the limitations period. More problematic is plaintiffs failure to attach the contract between the parties or otherwise specify any of its terms and the way in which Mitnick breached those terms. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Even under this liberal pleading standard, “plaintiff must disclose sufficient information to permit the defendant ‘to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery.’ ” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir.2000) (citing Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). This requires allegations of, “[a]t" }, { "docid": "20395564", "title": "", "text": "former employees or students after they leave the university. 4. Statute of Limitations Defenses to Contract Claims Defendants’ most serious challenge to the two categories of contract claims is that they are time-barred under the relevant New York statutes of limitations. In New York, an action to enforce a contractual obligation is subject to a six-year limitations period. N.Y. C.P.L.R. § 213(2). “Under New York law, a cause of action for breach of contract accrues and the statute of limitations commences when the contract is breached.” T & N PLC v. Fred S. James & Co. of New York, Inc., 29 F.3d 57, 59 (2d Cir.1994); Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993); N.Y.C.P.L.R. § 203(a). To establish that the statute of limitations bars Plaintiffs claims on a motion to dismiss, Defendants must establish that Plaintiffs own allegations of fact clearly establish that its claims are untimely. See supra Part II.A.2. Accordingly, the court looks to the latest accrual dates of the breach of contract claims reasonably suggested by the facts alleged in the Complaint. For reasons explained below, the court finds that Plaintiffs patent-assignment claims are untimely, and at least some of Plaintiffs revenue-sharing claims are timely. a. Accrual of Claim for Breach of the Assignment Obligations St. John’s repeatedly alleges that Bolton and Spireas had “agreed” or were “obligated” or “required” to assign the Liquisolid Patents, implying that the Agreements contemplated future performance by Bolton and Spireas in assigning their inventions to the University. In Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc., 583 F.3d 832, 841 (Fed.Cir.2009) (“Stanford”), cert. granted, — U.S.-, 131 S.Ct. 502, 178 L.Ed.2d 368 (2010), the Federal Circuit noted that it has ordinarily interpreted the language “agree to assign” in university patent policies as a “promise to assign rights in the future, not an immediate transfer of expectant interests.” A promise to assign may vest the promisee with equitable rights against the promisor, but does not effect a present transfer of interests. Id. at 841-42. Because" }, { "docid": "19688071", "title": "", "text": "149; Raine v. RKO General, Inc., 138 F.3d 90, 93 (2d Cir.1998); Hahn Automotive, 18 N.Y.3d at 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187, whether or not the plaintiff was aware of the breach. See Guilbert, 480 F.3d at 149 (“The plaintiff need not be aware of the breach or wrong to start the [limitations] period running.”); Jobim v. Songs of Universal, Inc., 732 F.Supp.2d 407, 422 (S.D.N.Y.2010). “Where a contract does not specify a-date or time for performance, New York law implies a reasonable time period.” Guilbert, 480 F.3d at 149; see also Schmidt v. McKay, 555 F.2d 30, 35 (2d Cir.1977); Savasta v. 470 Newport Associates, 82 N.Y.2d 763, 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171 (N.Y.1993). “What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case,” Savasta, 82 N.Y.2d at 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171, “including the subject matter of the contract, the situation of the parties, their intention, what they contemplated at the time the contract was made, and the circumstances surrounding performance.” Boehner v. Heise, 734 F.Supp.2d 389, 408 (S.D.N.Y.2010); see also RCN Telecom Services, Inc. v. 202 Centre Street Realty LLC, 156 Fed.Appx. 349, 351 (2d Cir.2005) (summary order); U.S. for Use and Benefit of Falco Const. Corp. v. Summit General Contracting Corp., 760 F.Supp. 1004, 1012 (E.D.N.Y.1991); Teramo & Co., Inc. v. O’Brien-Sheipe Funeral Home, Inc., 283 A.D.2d 635, 636, 725 N.Y.S.2d 87 (2d Dept.2001). “Ordinarily, the question of what is a reasonable time is one for a jury unless the facts are undisputed.” Boehner, 734 F.Supp.2d at 408; see also Tedeschi v. Northland Builders, LLC, 74 A.D.3d 1613, 1614, 904 N.Y.S.2d 786 (3rd Dept. 2010); Lake Steel Erection, Inc. v. Egan, 61 A.D.2d 1125, 1126, 403 N.Y.S.2d 387 (4th Dept.1978). a. Claim for Specific Performance (First Cause of Action) The Lia parties’ allege: (1) that defendants breached the 2003 Agreement by failing to execute the additional formal agreements incorporating that agreement upon American Honda’s issuance of a letter of intent awarding them the open point in September 2004, (Lia Compl., ¶¶ 22-24, 30-31);" }, { "docid": "5940510", "title": "", "text": "that he had knowledge of the facts giving rise to his fraud claims by April 2000, well more than two years before the filing of this complaint. (Pl.’s Opp’n Br. 5-10.) Therefore, the doctrine of equitable tolling does not allow him in this case to assert claims more than six years past the date of the fraud. However, the Court declines to decide whether it should treat the alleged fraudulent acts as a single continuous fraudulent scheme, in which case the limitations period for the entire scheme (from 1995 to 2000) would only begin to accrue on the date of the final fraudulently concealed conveyance. The parties have not properly briefed this question. . The New York Court of Appeals has declined to extend the limitations period for breach of contract claims where plaintiff was ignorant of the injury. See Ely-Cruikshank Co., 599 N.Y.S.2d 501, 615 N.E.2d at 988 (refusing to extend \"highly exceptional discovery notion to general breach of contract actions”). Thus, plaintiff may only recover for breaches occurring within six years of the filing of the complaint. Nor is this result overly harsh, as by plaintiff's own estimation, he waited almost Five years from discovering the injury before bringing this complaint, far beyond the two-year discovery extension the Court might apply pursuant to N.Y. C.P.L.R. § 203(f). See Glynwill Invs., 1995 WL 362500, at *4 (applying two-year limitations period accruing from date of discovery to breach of contract claim and barring claim as untimely). . To the extent plaintiff's claim to recover the allegedly excessive fees paid arises from a contractual provision, plaintiff has an adequate legal remedy and may not seek to impose a constructive trust over those excessive fees. See Bertoni v. Catucci, 117 A.D.2d 892, 498 N.Y.S.2d 902, 905 (N.Y.App.Div.1986) (\"As an equitable remedy, a constructive trust should not be imposed unless it is demonstrated that a legal remedy is inadequate.\"); see also Superintendent of Ins. v. Ochs (In re First Cent. Financial Corp.), 377 F.3d 209, 215 (2d Cir.2004); Evans v. Winston & Strawn, 303 A.D.2d 331, 757 N.Y.S.2d 532, 534 (2003)." }, { "docid": "22475507", "title": "", "text": "was correct to apply New York state law. In the alternative, Plaintiff maintains the district court misapplied New York law. Plaintiff argues that because the pension plan required annual payments of $10,000, his claims for those payments could not have accrued in 1993. Plaintiff contends that under New York law, where there is a continuing breach of contract, the six-year statute of limitations bars only those claims for breaches occurring more than six years before the action was commenced. Thus, his claims for the annual $10,000 pension payments from 1995 until the 2001 are not barred. In New York, the Statute of Limitations on a claim for breach of contract is six years. N.Y. C.P.L.R. § 213(2). In general, the limitations period begins to run when the cause of action accrues. N.Y. C.P.L.R. § 203(a). A cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach. See Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985, 986 (1993). The plaintiff need not be aware of the breach or wrong to start the period running. See id. 599 N.Y.S.2d 501, 615 N.E.2d at 987. Where a contract does not speedy a date or time for performance, New York law implies a reasonable time period. See Schmidt v. McKay, 555 F.2d 30, 35 (2d Cir.1977); Lituchy v. Guinan Lithographic Co., 60 A.D.2d 622, 400 N.Y.S.2d 158, 159 (App.Div.1977). An acknowledgment or promise to perform a previously defaulted contract must be in writing to re-start the statute of limita tions. See N.Y. Gen. Oblig. Law § 17-101 ; Lew Morris Demolition Co. v. Bd. of Ed., 40 N.Y.2d 516, 387 N.Y.S.2d 409, 355 N.E.2d 369, 371 (1976); Perez v. Bangkok Bank, Ltd., No. 87 CIV. 1753, 1989 WL 13749, at *1 (S.D.N.Y. Feb. 10, 1989). If, however, a contract requires continuing performance over a period of time, each successive breach may begin the statute of limitations running anew. See Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606, 415 N.Y.S.2d 817, 389 N.E.2d 130, 132 (1979); Stalis v. Sugar" }, { "docid": "22475506", "title": "", "text": "330. “Consistent with the discovery rule, the general rule in an ERISA cause of action is that a cause of action accrues after a claim for benefits has been made and has been formally denied.” Id.; accord Daill, 100 F.3d at 66 (cause of action accrued when pension claim was denied); see also Carey v. Int’l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 48 (2d Cir.1999) (“an ERISA claim accrues upon a clear repudiation by the plan that is known, or should be known, to the plaintiff-regardless of whether the plaintiff has filed a formal application for benefits”); Miles, 698 F.2d at 598. In this case, the district court held that there was no cause of action under ERISA because Defendants had not “established or maintained” a program for purposes of the Act. Thus, unlike the above-cited cases, there was no underlying federal claim; the district court could not have looked to federal common law to determine when Plaintiffs breach of contract claim accrued. Miles is inapposite and the district court was correct to apply New York state law. In the alternative, Plaintiff maintains the district court misapplied New York law. Plaintiff argues that because the pension plan required annual payments of $10,000, his claims for those payments could not have accrued in 1993. Plaintiff contends that under New York law, where there is a continuing breach of contract, the six-year statute of limitations bars only those claims for breaches occurring more than six years before the action was commenced. Thus, his claims for the annual $10,000 pension payments from 1995 until the 2001 are not barred. In New York, the Statute of Limitations on a claim for breach of contract is six years. N.Y. C.P.L.R. § 213(2). In general, the limitations period begins to run when the cause of action accrues. N.Y. C.P.L.R. § 203(a). A cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach. See Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 599 N.Y.S.2d 501, 615 N.E.2d 985, 986 (1993). The plaintiff need" }, { "docid": "20669044", "title": "", "text": "that the doctrine of caveat emptor generally bars common law negligence claims but does not bar claims under section 22a-452(a). See Connecticut Resources Recovery Authority v. Refuse Gardens, 229 Conn. 455, 456-58 & n. 5, 642 A.2d 697 (1994). However, we need not resolve this issue. Whether ABB’s negligence claim is controlled by Connecticut common law or by section 22a-452(a), ABB would have to establish that General Resistance or Zero-Max negligently contaminated the site. Because ABB cannot establish that the defendants contaminated the site at all, ABB’s negligence claims were properly dismissed. IV. Breach of Contract and Statute of Limitations On September 11,1985, Zero-Max sold the site to ABB, and in the land-sale contract, Zero-Max allegedly promised that the site was in compliance with all environmental laws. On September 18,1991, approximately six years and one week later, ABB sued alleging that Zero-Max breached that promise. Because the parties had agreed to be bound by New York law and because the New York statute of limitations for breach of contract is six years, see N.Y. Civ. Prac. L. § 213(2) (McKinney 1990), the district court dismissed the action as untimely. On appeal, ABB makes a number of arguments why the district court’s decision should be reversed. Initially, we note that state law generally controls issues relating to a state statute of limitations, Personis v. Oiler, 889 F.2d 424, 426 (2d Cir.1989), and we will therefore look to New York law to evaluate ABB’s arguments. First, ABB argues that the limitations period did not begin to run until the time ABB discovered, or should have discovered, that the contract was breached. However, in New York it is well settled that the statute of limitation for breach of contract begins to run from the day the contract was breached, not from the day the breach was discovered, or should have been discovered. See, e.g., Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-04, 599 N.Y.S.2d 501, 502-04, 615 N.E.2d 985, 986-88 (1993); National Life Ins. Co. v. Frank B. Hall & Co. of New York, 67 N.Y.2d 1021, 1023-24, 503 N.Y.S.2d 318," }, { "docid": "3203668", "title": "", "text": "and subsequent letters, and on defendants’ alleged subsequent failure to correct those misrepresentations. Compare Compl. ¶ 86, with id. ¶¶ 90, 98-101. Second, the injuries alleged in the two claims are not distinct. Rather, both causes of action seek the same relief. Compare Compl. ¶ 88, with id. ¶ 103. For these reasons, and because KM seeks monetary, not equitable, relief, the three-year limitations period applies. KM’s claim accrued, by virtue of the fiduciary repudiation doctrine, in December 2008. See Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 518 (2d Cir.2001); Access Point Med., LLC v. Mandell, 106 A.D.3d 40, 45, 963 N.Y.S.2d 44 (1st Dep’t 2013); see also Anwar v. Fairfield Greenwich Ltd., 728 F.Supp.2d 372, 445 (S.D.N.Y.2010) (administrators and custodians of Madoff feeder-fund repudiated fiduciary duties when Madoffs fraud was exposed). Applying the three-year limitations period, this claim is untimely. For the reasons stated in Part IV(A)(2), supra, American Pipe tolling does not apply. KM’s breach of fiduciary duty claim is dismissed. C. Breach of the Duty of Good Faith and Fair Dealing 1. Statute of Limitations A six-year limitations period applies to claims for breach of an implied contractual duty. N.Y. C.P.L.R. § 213(2); see VEC Corp. of Del. v. Hilliard, 896 F.Supp.2d 253, 259 (S.D.N.Y.2012); Callahan v. Credit Suisse, Inc., 10 Civ. 4599(BSJ), 2011 WL 4001001, at *7 (S.D.N.Y. Aug. 18, 2011); Flight Scis., Inc. v. Cathay Pac. Airways Ltd., 647 F.Supp.2d 285, 288 (S.D.N.Y.2009). “A cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach. The plaintiff need not be aware of the breach or wrong to start the period running.” Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.2007) (citing Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993)). “If, however, a contract requires continuing performance over a period of time, each successive breach may begin the statute of limitations running anew.” Id. at 150 (collecting cases); see Bice v. Robb, 324 Fed.Appx. 79, 80 (2d Cir.2009) (summary order) (reversing dismissal of complaint as untimely, where promise to" }, { "docid": "20395563", "title": "", "text": "existence of his duty of performance, stating: “[Defendant’s] contractual obligation to give [the patent] to [Plaintiff], incurred during the lifetime of the contract, survived until fulfilled.” Bolton and Spireas likewise incurred their obligations to assign patentable inventions to St. John’s by performing the research from which those inventions derived at St. John’s and while subject to the Agreements. Furthermore, the court perceives no reason why it should be the first to endorse Spireas’s public policy argument. Spireas’s argument, that patent policies are only enforceable with respect to patents applied for during a researcher’s affiliation with the university, would create undesirable incentives for those engaged in productive research to abruptly end their work and leave the university at the first hint that they had made a profitable discovery — or worse, to conceal and hoard scientific discoveries for later exploitation. The court perceives no public policy concern with permitting a university to enforce its rights to intellectual property when, as is the case here, those intellectual property rights are implicated by patent applications filed by its former employees or students after they leave the university. 4. Statute of Limitations Defenses to Contract Claims Defendants’ most serious challenge to the two categories of contract claims is that they are time-barred under the relevant New York statutes of limitations. In New York, an action to enforce a contractual obligation is subject to a six-year limitations period. N.Y. C.P.L.R. § 213(2). “Under New York law, a cause of action for breach of contract accrues and the statute of limitations commences when the contract is breached.” T & N PLC v. Fred S. James & Co. of New York, Inc., 29 F.3d 57, 59 (2d Cir.1994); Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993); N.Y.C.P.L.R. § 203(a). To establish that the statute of limitations bars Plaintiffs claims on a motion to dismiss, Defendants must establish that Plaintiffs own allegations of fact clearly establish that its claims are untimely. See supra Part II.A.2. Accordingly, the court looks to the latest accrual dates of the breach of" }, { "docid": "19688070", "title": "", "text": "residents always face the shorter statute of limitations as between New York and the accrual state, New York State residents are always subject to the New York statute of limitations.”) Since the Lia parties are all residents of the State of New York, (Lia Compl., ¶¶ 1-3), New York’s statutes of limitations apply- 2. Claims for Specific Performance (First Cause of Action) and Breach of Contract (Eighth Cause of Action) The Lia parties’ first cause of action seeking specific performance of the 2003 and 2006 Agreements is a claim for breach of contract governed by the six (6)-year statute of limitations under Section 213(2) of the New York Civil Practice Law and Rules. See Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.2007); Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187 (N.Y.2012). Generally, under New York law, a cause of action for breach of contract accrues, and the limitations period begins to run, at the time of the breach, see Guilbert, 480 F.3d at 149; Raine v. RKO General, Inc., 138 F.3d 90, 93 (2d Cir.1998); Hahn Automotive, 18 N.Y.3d at 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187, whether or not the plaintiff was aware of the breach. See Guilbert, 480 F.3d at 149 (“The plaintiff need not be aware of the breach or wrong to start the [limitations] period running.”); Jobim v. Songs of Universal, Inc., 732 F.Supp.2d 407, 422 (S.D.N.Y.2010). “Where a contract does not specify a-date or time for performance, New York law implies a reasonable time period.” Guilbert, 480 F.3d at 149; see also Schmidt v. McKay, 555 F.2d 30, 35 (2d Cir.1977); Savasta v. 470 Newport Associates, 82 N.Y.2d 763, 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171 (N.Y.1993). “What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case,” Savasta, 82 N.Y.2d at 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171, “including the subject matter of the contract, the situation of the parties, their intention, what they contemplated at the time the contract was made, and the circumstances surrounding" }, { "docid": "3203669", "title": "", "text": "1. Statute of Limitations A six-year limitations period applies to claims for breach of an implied contractual duty. N.Y. C.P.L.R. § 213(2); see VEC Corp. of Del. v. Hilliard, 896 F.Supp.2d 253, 259 (S.D.N.Y.2012); Callahan v. Credit Suisse, Inc., 10 Civ. 4599(BSJ), 2011 WL 4001001, at *7 (S.D.N.Y. Aug. 18, 2011); Flight Scis., Inc. v. Cathay Pac. Airways Ltd., 647 F.Supp.2d 285, 288 (S.D.N.Y.2009). “A cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach. The plaintiff need not be aware of the breach or wrong to start the period running.” Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.2007) (citing Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993)). “If, however, a contract requires continuing performance over a period of time, each successive breach may begin the statute of limitations running anew.” Id. at 150 (collecting cases); see Bice v. Robb, 324 Fed.Appx. 79, 80 (2d Cir.2009) (summary order) (reversing dismissal of complaint as untimely, where promise to manage family business may have imposed a continuing duty); Kermanshah v. Kermanshah, 580 F.Supp.2d 247, 261 (S.D.N.Y.2008) (duty to share equally in corporate opportunities was continuing duty). Assuming that a contract existed between KM and defendants that imposed a continuing duty of good faith and fair dealing, that duty would have continued until December 2008, making KM’s claim timely. 2. Merits “Under New York law, a covenant of good faith and fair dealing is implied in all contracts.” State Street Bank & Trust Co. v. Inversiones Errazuriz Ltd., 374 F.3d 158, 169 (2d Cir.2004) (citation omitted). “Encompassed within the implied obligation of each promisor to exercise good faith are any promises which a reasonable person in the position of the promisee would be justified in understanding were included.” Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995) (citation omitted). “This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the" }, { "docid": "5940509", "title": "", "text": "during his entire relationship with defendants. See Meridien Int’l Bank v. Liberia, 23 F.Supp.2d 439, 446 (S.D.N.Y.1998) (plaintiff benefits from equitable tolling where \"some action on the [defendant’s] part made it such that the [plaintiff was] unaware that the cause of action existed.”). Plaintiff is mistaken that he can benefit from equitable tolling on his fraud claim. \"The Statute of Limitations for actual fraud is six years from the commission of the fraud or two years from the time of discovery.” Mechanical Plastics Corp. v. Rawlplug Co., 119 A.D.2d 641, 501 N.Y.S.2d 85, 88 (N.Y.App.Div.1986) (citing N.Y. C.P.L.R. §§ 213(8), 203(f)); Dull v. South New Berlin Valley Supply, Inc., 80 A.D.2d 946, 438 N.Y.S.2d 25, 26 (N.Y.App.Div.1981); Glynwill Invs., N.V. v. Prudential Sec., Inc., No. 92 Civ. 9267(CSH), 1995 U.S. Dist. LEXIS 8262, 1995 WL 362500, at *4 (S.D.N.Y. June 16, 2005) (“applicability of [the equitable tolling] doctrine cannot extend the limitations period beyond the two years prescribed by the statute” (citing Riis v. Mfrs. Hanover Trust Co., 632 F.Supp. 1098, 1105 (S.D.N.Y.1986))). Plaintiff concedes that he had knowledge of the facts giving rise to his fraud claims by April 2000, well more than two years before the filing of this complaint. (Pl.’s Opp’n Br. 5-10.) Therefore, the doctrine of equitable tolling does not allow him in this case to assert claims more than six years past the date of the fraud. However, the Court declines to decide whether it should treat the alleged fraudulent acts as a single continuous fraudulent scheme, in which case the limitations period for the entire scheme (from 1995 to 2000) would only begin to accrue on the date of the final fraudulently concealed conveyance. The parties have not properly briefed this question. . The New York Court of Appeals has declined to extend the limitations period for breach of contract claims where plaintiff was ignorant of the injury. See Ely-Cruikshank Co., 599 N.Y.S.2d 501, 615 N.E.2d at 988 (refusing to extend \"highly exceptional discovery notion to general breach of contract actions”). Thus, plaintiff may only recover for breaches occurring within six years of the" } ]

[ { "docid": "5258080", "title": "", "text": "here are not free of difficulty, and they bear importantly on the formation of enforcement policy around the relatively new and recently amended Unfair Trade Practices Act of the State, an important consumer protection statute. The difficulties in the consumer protection field with federal class actions, turning on the jurisdictional amount problem, give special importance to the enactment and implementation of such statutes as the Connecticut Unfair Trade Practices Act. As the Court, speaking of district court decisions on state law questions, said in Railroad Commission v. Pullman Co., 1941, 312 U.S. 496, 499, 61 S.Ct. 643, 645, 85 L.Ed. 971, “. . . no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination.” Abstention in favor of state court adjudication is sound judicial administration where, as here, it can increase the assurance that all those affected by the statute in question, including the parties to this action, will be given the benefit of an authoritative and uniform rule of law applied alike to all businesses and grievants. Cf. Kaiser Steel Corp. v. W. S. Ranch Co., 1968, 391 U.S. 593, 594, 88 S.Ct. 1753, 20 L.Ed.2d 835. It is well for federal courts to remember that in such a case as the present one a federal court can only try to ascertain state law, whereas the state has provided a unified method for the formation of policy and the determination of issues by the Commissioner of Consumer Protection and in the state courts. Cf. Burford v. Sun Oil Co., 1943, 319 U.S. 315, 331, 333-334, 63 S.Ct. 1098, 87 L.Ed. 1424. See also Chance v. Board of Examiners, 2d Cir. 1977, 561 F.2d 1079, 1091-1092; Reid v. Board of Education, 2d Cir. 1971, 453 F.2d 238, 241-244. In the unique situation of the present case abstention can be exercised through remand, assuring an adjudication of the state law issues in the pending action without risk of delay. That is the indicated course where, as here, the state law is uncertain and its resolution a matter of concern" } ]

[ { "docid": "7237060", "title": "", "text": "claims, conceivably they are meritorious. It appears from the Prehearing Conference Report, filed with the Court as Plaintiffs Exhibit 22, that plaintiff might not be able to present his constitutional claims in an adjudication hearing before the Board. Moreover, Ohio Revised Code § 3734.-05(C)(7) provides that in an appeal from the Board ... the court is confined to the record as certified to it by the board. The Court may grant a request for the admission of additional evidence when satisfied that the additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the board. Thus, it is possible that plaintiff’s constitutional claims could not be presented to the state courts. Thus, this Court will retain jurisdiction solely for the purpose of providing a federal forum in the event that plaintiff cannot present his constitutional claims in the state proceedings. III. Plaintiff seeks not only injunctive and declaratory relief but also damages from defendants for economic losses and loss of goodwill. Ordinarily, actions for damages are not appropriate cases for abstention, for they tend not to interfere with the formulation of state policy to the extent that actions for equitable relief do. In the present case, however, plaintiff’s claim for damages is intertwined with his claim for equitable relief, and would involve many of the same issues. Unlike the claim for damages in Forest Hills Utility Co. v. City of Heath, Ohio, supra, at 596, plaintiff’s claim for damages cannot be said to be “separate” from his claim for injunctive relief. In consequence, this Court concludes that it would be improper to entertain plaintiff’s damages claims. WHEREFORE, upon consideration and being duly advised, this Court determines in its equitable discretion that it will ABSTAIN from considering the merits of this case and, therefore, orders that this case be STAYED while plaintiff presents his claims for administrative determination and judicial review in the state courts. The Court will, however, retain jurisdiction over this action pending final outcome of the state proceedings, for the purpose of providing a forum for plaintiff’s constitutional claims" }, { "docid": "22931944", "title": "", "text": "question of federal constitutional law. Therefore, a determination that the federal plaintiffs constitutional rights were violated would be just as intrusive as a declaratory judgment. Despite these practical similarities, damages actions are different from actions that seek only declaratory or injunctive relief in two important respects: The relief is not discretionary, and it may not be available in the state proceeding. For example in this case, while Gilbertson could raise his constitutional challenges in the state proceeding, he could not seek compensation for whatever deprivation may have occurred. But there is no reason why federal interference with the state proceeding cannot be avoided, thus preserving the interests of comity, yet damages also be available in the federal court, thus protecting the federal plaintiffs right to seek them. This can be accomplished by entry of an order staying the federal action until the state proceeding has been completed. See Deakins, 484 U.S. at 202-03, 108 S.Ct. 523 (commending the Third Circuit’s rule that requires a district court to stay rather than dismiss claims that are not cognizable in the parallel state proceeding as sound because “[i]t allows a parallel state proceeding to go forward without interference from its federal sibling, while enforcing the, duty of federal courts to assume jurisdiction where jurisdiction properly exists” (internal quotation marks omitted)). When the Supreme Court has applied abstention principles to actions at law, it has only allowed stay orders, not orders dismissing the action entirely. See Quackenbush, 517 U.S. at 719-20, 116 S.Ct. 1712 (collecting cases). We believe it is prudent to adhere to this approach. When an injunction is sought and Younger applies, it makes sense to abstain, that is, to refrain from exercising jurisdiction, permanently by dismissing the federal action because the federal court is only being asked to stop the state proceeding. Once it is determined that an injunction is not warranted on Younger grounds, there is nothing more for the federal court to do. Hence, dismissal (and only dismissal) is appropriate. But when damages are sought and Younger principles apply, it makes sense for the federal court to refrain from" }, { "docid": "8563050", "title": "", "text": "the precedential value of County of Suffolk. As discussed below, the Burford doctrine would compel the stay of Plaintiffs’ RICO claims pending the WDCB’s determination of Plaintiffs’ entitlements to workers’ compensation benefits. 2. Burford Abstention Doctrine The Burford abstention doctrine takes its name from the Supreme Court’s decision in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In Rouse v. DaimlerChrysler Corporation, the United States Court of Appeals for the Sixth Circuit underscored that the aim of the Burford doctrine is to “avoid conflict with a state’s administration of its own affairs.” 300 F.3d 711, 716 (6th Cir.2002). The Sixth Circuit held that, therefore, the Burford doctrine “applies only if a federal court’s decision on a state law issue is likely to ‘interfere with the proceedings or orders of state administrative agencies.’ ” Id. The Sixth Circuit further held: The Burford abstention [doctrine] should not be applied unless: (1) a case presents difficult questions of state law bearing, on policy problems of substantial public import whose importance transcends the result in the case then at bar, or (2) the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Id. (internal quotation marks omitted); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (implicitly recognizing that the Bur-ford doctrine may apply where the case involves either a “state-law claim” or “an assertion that the federal claims [were] ... entangled in a skein of state law that must be entangled before the federal case can proceed”) (internal quotation marks omitted). Since Burford, the Supreme Court has held that a federal court may dismiss or remand a complaint “based on abstention principles only where the relief being sought is equitable or otherwise discretionary.” Quackenbush, 517 U.S. at 731, 116 S.Ct. 1712 (illustrating such equitable or discretionary relief with suits for injunctive relief or certain classes of declaratory judgments). However, the Court noted that," }, { "docid": "1589242", "title": "", "text": "inevitable product being “[djelay, misunderstanding of local law, and needless federal conflict with the State policy.” Accordingly, the Court held that federal courts should abstain from exercising federal question jurisdiction to adjudicate “color-able constitutional claims,” and defer to a state’s resolution of “difficult questions of state law bearing on policy problems of substantial import whose importance transcends the result in the case then at bar.” A decision to abstain under Burford, must be “based on a careful consideration of the federal interests in retaining jurisdiction over the dispute” and ultimately represents a determination “that the State’s interest are paramount and that [the] dispute would best be adjudicated in a state forum.” Although there is no “formulaic test” for deciding whether the case at bar comes within the narrow exception of Burford, the Fifth Circuit has extracted five factors that should be considered: (1) “whether the cause of action arises under federal or state law;” (2) “whether the case requires inquiry into unsettled issues of state law;” (3) “the importance of the state interest involved;” (4) “the state’s need for a coherent policy in that area;” and (5) “the presence of a special state forum for judicial review.” Further, in Quackenbush, the United States Supreme Court clarified that “federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary,” such as a request for declaratory judgment. A federal “court may not abstain under Burford when the plaintiff seeks only legal relief,” such as an award of money damages. As recently explained by the Fifth Circuit: In applying Burford, abstention, the court does not necessarily consider whether the cause of action is based on state or federal law, but instead looks at whether the plaintiffs claim is entangled in an area of state law that must be untangled before the federal case can proceed. Sierra Club v. City of San Antonio, 112 F.3d 789, 795 (5th Cir.1997). Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings" }, { "docid": "18729392", "title": "", "text": "court case”); In re Ross, 64 B.R. 829, 834 (Bankr.S.D.N.Y.1986); see also In re Princess Louise Corp., 77 B.R. 766, 771 (Bankr.C.D.Cal.1987); In re Micro Mart, Inc., 72 B.R. 63, 64 (Bankr.N.D.Ga.1987). Mandatory abstention pursuant to Section 1334(c)(2) is appropriate only in instances “where an action could not have been commenced in a court of the United States absent jurisdiction under this section.” 28 U.S.C. § 1334(c)(2). As has been set forth, this Court has jurisdiction over Neuman II. Mandatory abstention is also inappropriate in instances where an action cannot be “timely adjudicated” in the state forum. 28 U.S.C. § 1334(c)(2). Plaintiffs argue that the Neuman II action can be quickly adjudicated in New York state court. Given the prior proceedings recounted above, there has not been, and could not be, a showing that a resolution could be “timely” in the state courts. The Plaintiffs’ counsel have so indicated in other actions involving Integrated-sponsored limited partnerships litigations. Moreover, Integrated’s bankruptcy proceedings are well advanced and Neuman II is at the starting line. Even the most efficient court system could not reach the finish line in a timely fashion that would avoid interference with the federal interests at stake. Equitable abstention pursuant to 28 U.S.C. § 1334(c)(1) or remand on equitable grounds based on 28 U.S.C. § 1452(b) are not warranted. The fact that a complaint is based on state law causes of action does not mandate equitable abstention or remand, particularly where the state law claims are not novel or complex and here where in certain of the MDL cases pendent state court claims also have supported jurisdiction. In Weisman this court declined to abstain on equitable grounds from exercising jurisdiction over a complaint that was based solely on state law, holding: [BJecause no parallel action is pending in state court, there is no danger of inconsistent judgments or friction between state and federal courts. Nor does the action present novel or complex state law issues or a potential conflict between state law and federal constitutional law. Thus, there is no reason to abstain in favor of the state court." }, { "docid": "9951228", "title": "", "text": "substantial public import whose importance transcends the results of the case at bar” and (ii) “exceptional circumstances” call for abstention. Specifically, Suffolk argues that the market share theory of liability involves matters of first impression that should be left for New York courts to decide, and that the “reactive nature” of Lyondell’s third-party complaint and considerations of comity weigh in favor of the Court exercising restraint. Plaintiffs further argue that Lyondell impleaded Marathon for the sole reason of coming to federal court after the defendants suffered serious defeats in state court — namely, losing their motion to dismiss and being ordered to complete discovery on an expedited basis. Suffolk suggests that defendants and Marathon colluded to remove the case, citing (1) Marathon’s failure to comply with the state court’s discovery schedule, (2) Marathon’s filing of its notice of removal within a week of being served with the third-party complaint, and (3) the fact that Marathon’s attorneys also represent Lyondell in a corporate transaction. In addition, Suffolk claims that because it is a sovereign authority, the concern for federal-state relations, comity, federalism, and efficient judicial administration justifies abstention from the exercise of jurisdiction. Abstention from the exercise of federal jurisdiction is an “extraordinary and narrow” exception, not the rule. A district court may abstain from hearing a case in four circumstances: (1) where the resolution of a federal constitutional question may be rendered unnecessary by a state-court interpretation of an ambiguous statute (Pullman abstention); (2) to avoid interference with essential state functions, such as state criminal proceedings (Younger abstention); (3) where the case involves difficult state-law questions involving local regulation or important matters of local public policy (Burford abstention); or (4) in “exceptional circumstances” where concurrent state-court litigation could result in comprehensive disposition of the litigation (Colorado River abstention). “Because we are considering an exception to a court’s normal duty to adjudicate a controversy properly before it, the district court’s discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved.” The latter two abstention categories are -the only ones that might be applicable here." }, { "docid": "15660429", "title": "", "text": "is true that the granting of declaratory relief is entrusted to the discretion of the district court. Section 2201 explicitly provides that “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.” (Emphasis added). But when a plaintiff seeks relief in addition to a declaratory judgment, such as damages or injunctive relief, both of which a court must address, then the entire benefit derived from exercising discretion not to grant declaratory relief is frustrated, and a stay would not save any judicial resources. The claims in this case for which declaratory relief is requested and those for which injunctive relief is requested are so closely intertwined that judicial economy counsels against dismiss ing the claims for declaratory judgment relief while adjudicating the claims for in-junctive relief. Accordingly, we reject Maryland’s additional argument. IV For all of the reasons given, we conclude that the district court abused its discretion in staying the proceedings in this case under the Colorado River abstention doctrine, pending the outcome of state administrative proceedings. Accordingly, we vacate the district court’s abstention order and remand for further proceedings. VACATED AND REMANDED . Thus, for example, the Supreme Court has held that federal courts have the power to refrain from hearing: (1) cases that would interfere with a pending state criminal proceeding, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or with certain types of state civil proceedings, see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); (2) cases in which the resolution of a federal constitutional question might be mooted if the state courts were given the opportunity to interpret ambiguous state law, see R.R. Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); (3) cases raising issues \"intimately involved with [the States’] sovereign prerogative,” the proper adjudication of which might be impaired by unsettled questions of state law, see La. Power & Light Co. v. City of Thibodaux, 360" }, { "docid": "9795604", "title": "", "text": "central to our jurisdiction in Meredith is present here. C. BURFORD ABSTENTION DOCTRINE The Casinos also seek review of the denial of their motion to stay or dismiss the action on Burford abstention grounds. Burford abstention “is concerned with protecting complex state administrative processes from undue federal interference.” Tucker v. First Md. Sav. & Loan, Inc., 942 F.2d 1401, 1404 (9th Cir.1991) (internal quotation marks omitted). Where applicable, Burford abstention normally requires a court to dismiss an action, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and is only appropriate where: (1) ... the state has concentrated suits involving the local issue in a particular court; (2) the federal issues are not easily separable from complicated state law issues with which the state courts may have special competence; and (3) ... federal review might disrupt state efforts to establish a coherent policy. Tucker, 942 F.2d at 1405. Because the legal standard set forth in Tucker bears no similarity at all to class certification analysis, the first prong of Swint provides us with no jurisdictional basis over the Casino’s Burford abstention claim. Neither is the Burford abstention issue “necessary for meaningful review of’ the class certification decision. Burford abstention is slightly more like Younger abstention than the primary jurisdiction doctrine, because both Burford and Younger abstention guard against federal interference with state proceedings. However, because the focus of Smnt and Meredith is on the interrelatedness of the pendent decision and the decision before the court on interlocutory appeal, this similarity does not affect the Swint analysis here. The Casinos cite to no pending administrative claim or process; nor do they explain how our certification analysis hinges on or impugns the Burford question. Review of the Burford abstention issue implicates entirely different issues than review of the class certification issue, does not potentially pit a federal court’s decision against an ongoing state proceeding, and does not otherwise fit the narrow mold of Swint or Meredith. D. PERSONAL JURISDICTION We also decline to review the district court’s exercise of personal jurisdiction over the non-Nevada defendants —" }, { "docid": "345198", "title": "", "text": "not a criminal or civil enforcement case, and it is not “uniquely in the furtherance of the state courts’ ability to perform their judicial functions,” New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 368, 109 S.Ct. 2506, 2518, 105 L.Ed.2d 298 (1988), we doubt that the present case implicates the type of important state interest contemplated in Middlesex Ethics Comm. However, we need not reach that issue today. . These factors \"run substantially parallel to the criteria that historically have been deemed relevant in determining whether to accept or decline jurisdiction over a [declaratory judgment action].” Fuller Co., 782 F.2d at 308-09 n. 3. . We do not question the power of the commonwealth courts to reach their own conclusions in the separate commonwealth proceedings. Although we do not believe that the Rule 23(c) closure provisions are in any way ambiguous, the El Vocero opinion is helpful because it definitively expresses the views of the highest Commonwealth court regarding its view of the Rule 23 proceedings and of the validity of the closure provisions of Rule 23(c), thus leaving no doubt as to how it will be interpreted in that jurisdiction. Cf. Huffman, 420 U.S. at 616 n. 2, 95 S.Ct. at 1215 n. 2 (\"Abstention [may be] appropriate where authoritative resolution by state courts of ambiguities in a state statute is sufficiently likely to avoid or significantly modify federal questions raised by the statute.... Abstention is justified in such cases primarily by the policy of avoidance of premature constitutional adjudication.”). . Appellants also suggest that the factors elaborated by this court in El Día v. Hernandez Colón, 963 F.2d 488 (1st Cir.1992), to guide the discretion of district courts in determining whether to grant declaratory relief require us to reverse the district court’s grant of declaratory relief here. These factors include: (1) the general policy that unsettled questions of constitutional law should be addressed only when absolutely necessary; (2) the extent to which a federal case is ripe for adjudication; (3) the desirability of abstention; (4) comity between federal and commonwealth courts; and (5) the equity-like" }, { "docid": "20182275", "title": "", "text": "difficult state law questions nor would review be disruptive of state efforts to establish a health-services policy. Unlike Burford, where a federal court was called on to determine the reasonableness of a state agency decision, Metropolitan and EHI allege the state administrative process was not followed because of an unlawful antitrust conspiracy. For these reasons, I will not abstain from hearing plaintiffs’ requests for declaratory and injunctive relief on their antitrust claims. Alternatively, defendants contend that I should stay adjudication of the antitrust claims based on the prior resort doctrines of administrative law. See Huron Valley Hospital, Inc. v. City of Pontiac, 466 F.Supp. 1301 (E.D.Mich.1979), vacated on other grounds, 666 F.2d 1029 (6th Cir. 1981). While I agree with plaintiffs that abstention is not warranted, I also agree with defendants that action should be stayed until all state proceedings are completed. Plaintiffs request for injunctive relief is presently before the Pennsylvania Commonwealth Court which may find for Metropolitan thus making federal intervention unnecessary. Both the NHPRDA and HFCA provide for state court review of agency decisions; it would be unwise to interfere before the commonwealth court has had this opportunity. Moreover, for the reasons expressed by the Sixth Circuit, it would be imprudent to assess the nature and extent of any antitrust injury prior to completion of the state process. Huron Valley, 666 F.2d at 1034-35. For example, plaintiffs allege that defendants did not consider the anti-competitive effects on osteopaths and osteopathic services caused by the denial of Metropolitan’s application. Obviously, a decision by the commonwealth court on the weight to be given to osteopathic needs under the HCFA would be a material aid in resolution of this issue. See Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973). Thus, because many of the same issues raised here are also before the commonwealth court, I will stay action on counts II, IV, and V until completion of the state proceedings. Since abstention is warranted as to count I, I will dismiss plaintiffs’ claims to enjoin state proceedings and their request for an order" }, { "docid": "8021782", "title": "", "text": "absence of exceptional circumstances warranting abstention and the FAA’s liberal federal policy favoring arbitration agreements. Appellees maintain, however, that the district court’s abstention was appropriate because: 1) the state court action was filed first; 2) Bank One raised arbitration as an affirmative defense in its answer in the state court action and has made no showing that the state court is reluctant to hear the matter; 3) abstention by the federal district court avoids piecemeal litigation resulting from the multiplicity of Bank One’s federal court actions; 4) Bank One’s filing of the federal actions is a vexatious attempt to harass Appellees and avoid proper state court jurisdiction; and 5) the interests of wise administration of judicial resources are best served by permitting one state court judge to determine the issue of arbitration for all plaintiffs in the single state court action. The federal courts have a virtually unflagging obligation to exercise the jurisdiction conferred upon them. Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Id. at 813, 96 S.Ct. 1236. Abdication of the obligation to decide cases under the doctrine of abstention can be justified “only in the exceptional circumstances where the order to the parties to repair to state court would clearly serve an important countervailing interest.” Id. The doctrine of abstention generally applies only to cases involving “considerations of proper constitutional adjudication [or] regard for federal-state relations ... in situations involving the contemporaneous exercise of concurrent jurisdictions.” Id. at 817, 96 S.Ct. 1236. The present case, however, presents neither a federal constitutional question nor an issue of federal-state comity. Nevertheless, it may still be appropriate for a federal district court to refrain from exercising jurisdiction on considerations of wise administration of judicial resources. “[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone," }, { "docid": "5043104", "title": "", "text": "the appropriate time.” (Id. at 17.) Beckman’s concerns do not state any basis for application of Burford abstention insofar as Eagle’s constitutional and statutory construction claims are concerned. That doctrine has been summarized as follows: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (quoting Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). In this case, it is not clear how any adjudication by this Court would “interfere with the proceedings or orders of state administrative agencies.” We are being asked here to decide only issues of purely federal law which are separate and distinct from the issues being litigated by the parties in the state administrative proceedings. In fact, this Court’s adjudication as to Counts I, II, III and V should assist — rather than interfere with — the DEP’s efforts in carrying out its responsibilities under the Solid Waste Management Act. If, for example, we were to determine that the FAA Amendment is either inapplicable to Eagle’s situation or is unconstitutional on its face, no real interference would have occurred with the DEP’s administrative actions because, in that event, the DEP can have no future interest in applying an inapplicable or invalid statute against Eagle. Indeed, Beckman has acknowledged that he would not attempt to apply the Amendment, should this Court find it constitutionally infirm. If, on the other hand, this Court determines that the Amendment is both applicable to Eagle’s situation" }, { "docid": "18083372", "title": "", "text": "524 (citations omitted). Because the Supreme Court of New Mexico has already answered the controlling legal questions regarding uninsured motorist coverage, and apparently decided the most difficult issues, the Court’s task will be to determine whether the insurer Defendants are acting in compliance with those rulings. The Plaintiffs ask for declaratory and injunctive relief retroactively reforming existing insurance policies, ordering the Defendants to notify their insureds about these changes, and ordering the Defendants to comply with Jordan v. Allstate Ins. Co., See Complaint ¶¶ 1-2, at 18-19. At bottom, this case is an enforcement action which will not involve the detailed regulatory decision-making or federal interference that concerned the Supreme Court in Burford v. Sun Oil Co. The Court will not be reviewing any administrative decisions or circumventing any state administrative proceedings. Abstention under Burford v. Sun Oil Co. should be exercised “only rarely.” Quackenbush v. Allstate Ins. Co., 517 U.S. at 728, 116 S.Ct. 1712. “[T]he power to dismiss recognized in Burford represents an extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.” Quackenbush v. Allstate Ins. Co., 517 U.S. at 728, 116 S.Ct. 1712. Here, while this case may have some precedential value to other insureds and insurance companies, the exercise of jurisdiction does not require that the Court answer a difficult question of state law whose importance transcends this case. Also, federal review of the question would not be disruptive of state efforts to establish a coherent policy. Accordingly, the Court does not believe that abstention under the Burford v. Sun Oil Co. doctrine is appropriate. Even if there was a complex administrative process which might necessitate abstention under Burford v. Sun Oil Co., the Supreme Court has held that Burford v. Sun Oil Co. “does not require abstention whenever there exists such a [complex state administrative] process, or even in all eases where there is a ‘potential for conflict’ with the state regulatory law or policy.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. at 362, 109 S.Ct. 2506. “Because Burford" }, { "docid": "20558686", "title": "", "text": "on federal equitable relief, is also an expression of the reluctance of the federal courts to intervene in state proceedings. In its broadest sense, abstention is a judicially-fashioned doctrine which allows a federal court to stay or dismiss its proceedings until an issue of state law is authoritatively determined by a state court. Abstention was first recognized in the case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In this case, certain railroad companies sought to enjoin the enforcement of an order of the Texas Railroad Commission on the grounds that the order violated the Fourteenth Amendment and was unauthorized under Texas law. A three-judge district court did not reach the constitutional issue; instead, it granted injunctive relief on the ground that the Commission’s order was outside the scope of its authority under Texas law. On direct appeal, the Supreme Court reversed, holding that the district court should retain jurisdiction, but stay the proceedings pending an action in the state courts to secure an authoritative determination of the Commission’s statutory power. This determination was not compelled by constitutional principles. Instead, it was motivated by considerations of efficient judicial administration. The opinion in Pullman suggests two reasons for abstention. The first reason is the policy of avoiding unnecessary constitutional adjudication. The Court concluded that resolution of the constitutional question might not be necessary because it could be displaced by a state ruling which would obviate the constitutional problem. The second is the policy of avoiding “tentative” decisions involving unclear issues of state law. Such decisions, the Court concluded, might interfere with the “harmonious relation between state and federal authority.” In subsequent decisions, situations similar to Pullman were recognized by the Court to present clear cases for abstention. Since the Pullman doctrine requires the retention of jurisdiction by the federal court, this principle was not considered to “involve the abdication of federal jurisdiction but only the postponement of its exercise.” Nevertheless, the underlying policies of this doctrine were considered to be interdependent by the Court. Abstention was held to be appropriate only" }, { "docid": "1589244", "title": "", "text": "or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of substantial import whose importance transcends the result in the case at bar; or (2) where the exercise of federal review of the questions in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Because plaintiffs request “equitable or discretionary relief’—that is, the several requests for declarations of federal and state constitutional and statutory rights, including a declaration that “the administrative denial of Plaintiffs’ well permit applications null and void,” a request for a determination to “[rjeverse the administrative denial of Plaintiffs’ well permit applications and remand with instructions,” as well as a request for “any further remedies and relief at law or in equity, to which Plaintiffs may show themselves entitled” —the Court considers whether the Bur-ford abstention doctrine otherwise favors abstention. With respect to the first factor, plaintiffs’ first two causes of action seek review of matters that arise under state law and appear to be tantamount to a request for judicial review of GCGCD’s decision on the second set of nine applications—but in federal court rather than State court, as provided under the relevant provisions of the Texas Water Code. The remaining four causes of action allege violations of federal constitutional or statutory law related to alleged violations that occurred when GCGCD denied each of the ten applications. In NOPSI, the Supreme Court observed that although Burford itself involved federal and state claims, the federal constitutional issue was not substantial, and abstention otherwise not be appropriate when the case “does not involve a state-law claim.” Here, state-law claims have been presented. Although federal question subject matter jurisdiction exists over the “colorable” federal claims alleged in the third through sixth causes of action, the existence of state law claims allows for Burford abstention to be applied. Further, as discussed further below, “Burford abstention does not so much turn on whether the plaintiffs cause of action is alleged under federal or state law," }, { "docid": "9951229", "title": "", "text": "concern for federal-state relations, comity, federalism, and efficient judicial administration justifies abstention from the exercise of jurisdiction. Abstention from the exercise of federal jurisdiction is an “extraordinary and narrow” exception, not the rule. A district court may abstain from hearing a case in four circumstances: (1) where the resolution of a federal constitutional question may be rendered unnecessary by a state-court interpretation of an ambiguous statute (Pullman abstention); (2) to avoid interference with essential state functions, such as state criminal proceedings (Younger abstention); (3) where the case involves difficult state-law questions involving local regulation or important matters of local public policy (Burford abstention); or (4) in “exceptional circumstances” where concurrent state-court litigation could result in comprehensive disposition of the litigation (Colorado River abstention). “Because we are considering an exception to a court’s normal duty to adjudicate a controversy properly before it, the district court’s discretion must be exercised within the narrow and specific limits prescribed by the particular abstention doctrine involved.” The latter two abstention categories are -the only ones that might be applicable here. However, Suffolk has failed to show that this case falls within the narrow and specific limits of either the Burford or Colorado River abstention doctrines. This case does not involve difficult questions of state law that implicate important matters of local public policy. New York’s highest court has already adopted the market share theory of liability when the product at issue is fungible, incapable of identification by manufacturer, and each of the manufacturers created the same degree of risk to consumers. Because the state court has spoken author itatively on the collective liability issue, all that remains is for this Court to apply the state’s law. Suffolk asserts that even though the state court has ruled on this question of law, the Court should abstain because the issues are nevertheless difficult. As evidence, plaintiffs cite the fact that one federal district court has interpreted New York’s rule on market share liability incorrectly. However, the potential difficulty of a decision is not a ground for abstention. “In the absence of some recognized public policy or defined" }, { "docid": "21019389", "title": "", "text": "by contrast, has concluded that Burford abstention may be invoked even if the plaintiff seeks money damages. Wolfson v. Mutual Benefit Life Insur. Co., 51 F.3d 141, 147 (8th Cir.1995) (upholding district court’s decision to abstain from adjudicating plaintiffs claims for insurance benefits under ERISA, in light of defendant insurer’s involvement in pending state insolvency proceeding). The Third Circuit has apparently split on the issue. Compare Riley v. Simmons, 45 F.3d 764, 772 n. 7 (3d Cir.1995) (Hutchinson, J.) (expressing reluctance of “the opinion writer, not the Court,” to restrict Burford abstention to equity) with id. at 778-79 (Nygaard, J., concurring) (arguing that NOPSI and circuit precedent limit Bur-ford abstention to cases where equitable or declaratory relief is sought). We find it significant that the Supreme Court carefully traced the origin of abstention doctrines to the federal courts’ discretion to withhold equitable relief, NOPSI, 491 U.S. at 359, 109 S.Ct. at 2513, and reformulated the Burford doctrine to require federal courts “sitting in equity” to abstain from exercising their jurisdiction in certain circumstances. Id. at 361, 109 S.Ct. at 2514. Injunctions are the most intrusive sort of judicial relief, and may directly interfere with “the proceedings or orders of state administrative agencies.” Id. The Supreme Court’s decision in NOPSI leaves little doubt that Burford abstention is generally appropriate only in cases where equitable relief is sought. The defendants claim that our decision in Sheerbonnet, Ltd. v. American Express Bank Ltd., 17 F.3d 46 (2d Cir.1994), rejected the notion that Burford abstention is appropriate only when a plaintiff seeks equitable relief. In support of this argument, they point out that this court omitted the phrase “sitting in equity” when quoting NOPSI’s restatement of the Burford doctrine, Sheerbonnet, 17 F.3d at 48, and proceeded to address the merits of Burford abstention even though the plaintiffs sought only money damages. The defendants read too much into an ellipsis. The parties in Sheerbonnet had not raised the issue whether Burford abstention was permissible only in equitable actions, so we had no occasion to rule on it. Indeed, the result we reached — that Burford" }, { "docid": "1589243", "title": "", "text": "“the state’s need for a coherent policy in that area;” and (5) “the presence of a special state forum for judicial review.” Further, in Quackenbush, the United States Supreme Court clarified that “federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary,” such as a request for declaratory judgment. A federal “court may not abstain under Burford when the plaintiff seeks only legal relief,” such as an award of money damages. As recently explained by the Fifth Circuit: In applying Burford, abstention, the court does not necessarily consider whether the cause of action is based on state or federal law, but instead looks at whether the plaintiffs claim is entangled in an area of state law that must be untangled before the federal case can proceed. Sierra Club v. City of San Antonio, 112 F.3d 789, 795 (5th Cir.1997). Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of substantial import whose importance transcends the result in the case at bar; or (2) where the exercise of federal review of the questions in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Because plaintiffs request “equitable or discretionary relief’—that is, the several requests for declarations of federal and state constitutional and statutory rights, including a declaration that “the administrative denial of Plaintiffs’ well permit applications null and void,” a request for a determination to “[rjeverse the administrative denial of Plaintiffs’ well permit applications and remand with instructions,” as well as a request for “any further remedies and relief at law or in equity, to which Plaintiffs may show themselves entitled” —the Court considers whether the Bur-ford abstention doctrine otherwise favors abstention. With respect to the first factor, plaintiffs’ first two causes of action seek review of matters" }, { "docid": "21829262", "title": "", "text": "under RCRA exists; (3) none of the Defendants is a person “who has contributed or who is contributing to past or present ... storage ... or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment” as required under RCRA; (4) there is no evidence that any petroleum is leaking from the USTs in question; (5) an injunction under RCRA is not a remedy available to K-7; and (6) K- 7’s claim is barred by laches. Motion, p. 1-2. A. Burford Abstention The Burford abstention doctrine arose out of the Supreme Court case of Burford v. Sun Oil. The Court described the doctrine as follows: where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar’; or (2) where the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ Baran v. Port of Beaumont Navigation Dist. of Jefferson County Tex., 57 F.3d 436, 441 (5th Cir.1995). Burford abstention is concerned with protecting complex state administrative processes from “undue federal interference,” but abstention is not mandated simply because the state has an administrative process or because there is a potential for conflict. Id. at 442. In general, federal courts have a “virtually unflagging obligation” to exercise the jurisdiction conferred upon them. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Therefore, abstention, including under Burford, is the exception rather than the rule. Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir.1993). Abstention under Burford is only appropriate in actions seeking equitable rather than legal relief. “There is no formulaic test for determining when dismissal under Burford is appropriate.” Sierra" }, { "docid": "20558687", "title": "", "text": "determination of the Commission’s statutory power. This determination was not compelled by constitutional principles. Instead, it was motivated by considerations of efficient judicial administration. The opinion in Pullman suggests two reasons for abstention. The first reason is the policy of avoiding unnecessary constitutional adjudication. The Court concluded that resolution of the constitutional question might not be necessary because it could be displaced by a state ruling which would obviate the constitutional problem. The second is the policy of avoiding “tentative” decisions involving unclear issues of state law. Such decisions, the Court concluded, might interfere with the “harmonious relation between state and federal authority.” In subsequent decisions, situations similar to Pullman were recognized by the Court to present clear cases for abstention. Since the Pullman doctrine requires the retention of jurisdiction by the federal court, this principle was not considered to “involve the abdication of federal jurisdiction but only the postponement of its exercise.” Nevertheless, the underlying policies of this doctrine were considered to be interdependent by the Court. Abstention was held to be appropriate only in cases where a federal court could avoid resolving unclear questions of state law and a determination of these issues by a state court might dispose of the constitutional question. Where the state law was settled or was not fairly subject to an interpretation which would render unnecessary or substantially modify the federal question, abstention was deemed improper. In such situations, the Supreme Court held that the federal courts have a duty to decide the merits of the action. Abstention is not limited to cases, such as Pullman, where a premature constitutional decision may be avoided. A second principle dictates that a federal court should refrain from exercising its jurisdiction where it might entail needless conflict with the administration by a state of its own affairs. This doctrine is generally considered to have been established in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Burford case involved an attack upon the validity of a proration order of the Texas Railroad Commission granting Burford a permit to drill" } ]

[ { "docid": "19904101", "title": "", "text": "Roberts, 448 U.S. at 66, 100 S.Ct. 2531. In the recent cases of Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) and Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) , the Supreme Court answered this question and explained that the Confrontation Clause has no bearing on nontestimonial out-of-court statements. Thus, Roberts no longer applies to statements such as O’Reilly’s, and their admissibility is subject only to the Federal Rules of Evidence, which we analyze below. See Arnold, 486 F.3d at 192-93. The Supreme Court’s recent clarification of the scope of .the Confrontation Clause also eliminates any need to analyze the admissibility of the tape-recording under the rule established in Bruton v. United States, under which “[a]n accused is deprived of his rights under the Confrontation Clause when the confession of a non-testifying codefendant that implicates the accused is introduced into evidence at their joint trial ... even if the jury is instructed to consider the confession only as evidence against the codefendant.” United States v. Cope, 312 F.3d 757, 780-81 (6th Cir. 2002) (citing Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements. See United States v. Pugh, 273 Fed.Appx. 449, 455 (6th Cir.2008) (“[T]he statement at issue ... is nontestimonial in nature, and therefore, does not implicate the Confrontation Clause as analyzed under Bruton or otherwise.”); see also United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir.2009) (holding that Bruton does not apply to nontestimonial co-defendant statements); United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir.2008) (“[Bjecause the statement was not testimonial, its admission does not violate either Crawford [] or Bruton [ ].”). The inapplicability of Bruton and the Confrontation Clause to O’Reilly’s statements also forecloses Johnson’s argument that the tape-recording should have been redacted to eliminate the use of Johnson’s name. Cf. Gray v. Maryland, 523 U.S. 185, 191-92, 118 S.Ct. 1151, 140 L.Ed.2d" } ]

[ { "docid": "5214802", "title": "", "text": "734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In the wake of the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), we have held that a witness’s statement implicates the Confrontation Clause only if it is testimonial. United States v. Berrios, 676 F.3d 118, 126 (3d Cir.2012). Under Bruton v. United States, using a non-testifying codefendant’s confession violates a defendant’s rights under the Confrontation Clause. 391 U.S. 123, 127-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Critically, we have asserted that, “because Bruton is no more than a byproduct of the Confrontation Clause, the Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.” Berrios, 676 F.3d at 128. In view of our holding in Berrios, we conclude that Gist’s testimony did not contravene White’s Confrontation Clause rights. In Berrios, we considered a conversation between Reinaldo Berrios and one of his codefendants, Troy Moore, that was recorded as part of an unrelated investigation. Id. at 124. The conversation incriminated Berrios, Moore, and a third codefendant, who challenged admission of the recorded conversation on Confrontation Clause grounds. Id. at 125. We held that the recorded statements bore “none of the characteristics exhibited by testimonial statements” because there was no evidence that Berrios and Moore intended to incriminate their codefendants, that they were aware that their conversation was being recorded, or that “their conversation consisted of anything but ‘casual remark[s] to an acquaintance.’” Id. at 128 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The attributes of a testimonial statement are lacking here as well. There is no indication or argument that Lewis intended to incriminate Shavers and White or anticipated that Gist would be called to testify against them. Nor is there any suggestion that the conversation amounted to more than simply a" }, { "docid": "11371053", "title": "", "text": "348, 360 (5th Cir.2001). . See United States v. Nutall, 180 F.3d 182, 188 (5th Cir.1999). . See United States v. Barrandey, 481 Fed.Appx. 221, 224 (5th Cir.2012); United States v. Martinez, 172 F.3d 866, 1999 WL 129663, at *1 (5th Cir.1999) (per curiam); United States v. Gauthier, 248 F.3d 1138, 2001 WL 85819, at *1 (5th Cir.2001) (per curiam). . See United States v. Alaniz, 726 F.3d 586, 615 (5th Cir.2013). . United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010). . United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir.2008). . United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). . United States v. Dale, 614 F.3d 942, 958-59 (8th Cir.2010). . Smith v. Chavez, 11-55211, 2014 WL 1229918, at *1 (9th Cir. Mar. 26, 2014). . United States v. Clark, 717 F.3d 790, 816 (10th Cir.2013). . We applied a similar analysis in our unpublished decision in United States v. Surtain, 519 Fed.Appx. 266, 288 (5th Cir.2013). By contrast, because the defendant “was tried alone,” we did not address the issue at all in Fratta v. Quarterman, 536 F.3d 485, 496, 502 (5th Cir.2008) (\"[I]t was unreasonable ... to extend the rule of Bruton, which applies in the context of joint or multi-defendant trials, to the context of a single-defendant trial....”). . The Seventh Circuit has arguably applied Bruton to non-testimonial statements, although without explicitly acknowledging the resulting split of authority. See Jones v. Basinger, 635 F.3d 1030, 1037, 1050-52 (7th Cir.2011) (\"Lewis claimed that his brother James Parks had confessed to Lewis that he, Aaron, and Jones had committed the four murders.... Bruton makes clear that Jones’ right to confront Lewis and Parks about that confession was violated by Lewis’ and Parks’ failure to testify at trial and to subject their testimony to the 'crucible of cross-examination.’ ”). . See Burton, 324 F.3d at 770. . See Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2160 n. 1, 186 L.Ed.2d 314 (2013); United States v. Posey, 13-50570, 2014 WL 1724499, at *3 (5th Cir. May 2, 2014); United States v. Salazar," }, { "docid": "20764090", "title": "", "text": "Harvey pled guilty and Dargan received an individual trial. The formal structure of a Bruton claim is therefore absent. The “substantial risk” that a confession admitted against one defendant might affect the jury’s verdict regarding his co-defendant is not presented on these facts. See United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). Second, and more significantly, Bruton is simply irrelevant in the context of non-testimonial statements. Bruton espoused a prophylactic rule designed to prevent a specific type of Confrontation Clause violation. Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton. See, e.g., United States v. Clark, 717 F.3d 790, 816 (10th Cir.2013) (“[T]he Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements.”) (citation and internal quotation marks omitted). Our conclusion that Harvey’s statements were nontestimonial therefore suffices to dispatch Dargan’s Bruton argument as well. IV. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. We have reviewed the additional arguments contained in the supplemental pro se brief and find nothing of merit therein." }, { "docid": "7077810", "title": "", "text": "at 50-51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)); see id. at 50, 124 S.Ct. 1354 (noting the Founders’ concern with the “use of ex parte examinations as evidence against the accused”); see also Bullcoming, 131 S.Ct. at 2713 (“[Fidelity to the Confrontation Clause [does not] permit[] admission of [testimonial statements of witnesses absent from trial,” absent a showing that “the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (fourth alteration in original) (quoting Crawford, 541 U.S. at 59, 124 S.Ct. 1354) (internal quotation marks omitted)). Crawford indicates that the class of testimonial statements that fall within the protective ambit of the Confrontation Clause includes, but is not limited to, statements covered also by Bruton. See Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (listing as examples of testimonial statements “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ” (emphasis added) (quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in judgment)) (internal quotation marks omitted)); see also Jones v. Basinger, 635 F.3d 1030, 1049 n. 6 (7th Cir.2011) (“The use of a non-testifying accomplice’s confession ... in seventeenth century England set in motion the series of legal reforms eventually resulting in the Confrontation Clause itself.” (citing Crawford, 541 U.S. at 44-46, 124 S.Ct. 1354)); cf. Smalls, 605 F.3d at 768 n. 2 (noting that “the Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements”). Thus, we are obliged to “view Bruton through the lens of Crawford” and, in doing so, we consider “whether the challenged statement is testimonial.” Figueroa-Cartagena, 612 F.3d at 85. In Smalls, based upon our synthesis of Crawford, Davis, and our own Confrontation Clause precedent, we posited two possible definitions of a “testimonial” statement: (1) “a formal declaration made by the declarant that, when objectively considered, indicates the primary purpose for which the declaration was made was that of establishing or" }, { "docid": "20728984", "title": "", "text": "v. Phoeun Lang, 672 F.3d 17, 21 (1st Cir.2012) (quoting Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011)) (internal quotation marks omitted). In Crawford, the Supreme Court held that the Confrontation Clause bars the admission of “testimonial statements of witnesses absent from trial,” unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. 541 U.S. at 59, 124 S.Ct. 1354. Two years later, in Davis v. Washington, the Court held that Crawford ’s prohibition “applies only to testimonial hearsay.” Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (emphasis added). Thus, “the threshold question in every ease is whether the challenged statement is testimonial. If it is not, the Confrontation Clause has ‘no application.’ ” Figueroo-Cartagena, 612 F.3d at 85 (quoting Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)). The Supreme Court has yet to supply a “comprehensive definition of ‘testimonial.’ ” Lang, 672 F.3d at 22 (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354); see also Davis, 547 U.S. at 822, 126 S.Ct. 2266 (deciding narrow issues before the Court “[w]ithout attempting to produce an exhaustive classification of all conceivable statements ... as either testimonial or nontestimonial”). The Court in Crawford, however, provided an “illustrative list of the ‘core class of testimonial statements.’ ” Lang, 672 F.3d at 22 (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). This list included “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (internal quotation marks omitted). On the other hand, the Court also indicated that certain types of statements “by their nature [are] not testimonial — for example, business records or statements in furtherance of a conspiracy,” and therefore do not implicate the Confrontation Clause. Crawford, 541 U.S. at 56, 124 S.Ct. 1354. Relying on Crawford, we have held in a number of cases that business records — or their" }, { "docid": "7077811", "title": "", "text": "116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in judgment)) (internal quotation marks omitted)); see also Jones v. Basinger, 635 F.3d 1030, 1049 n. 6 (7th Cir.2011) (“The use of a non-testifying accomplice’s confession ... in seventeenth century England set in motion the series of legal reforms eventually resulting in the Confrontation Clause itself.” (citing Crawford, 541 U.S. at 44-46, 124 S.Ct. 1354)); cf. Smalls, 605 F.3d at 768 n. 2 (noting that “the Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements”). Thus, we are obliged to “view Bruton through the lens of Crawford” and, in doing so, we consider “whether the challenged statement is testimonial.” Figueroa-Cartagena, 612 F.3d at 85. In Smalls, based upon our synthesis of Crawford, Davis, and our own Confrontation Clause precedent, we posited two possible definitions of a “testimonial” statement: (1) “a formal declaration made by the declarant that, when objectively considered, indicates the primary purpose for which the declaration was made was that of establishing or proving some fact potentially relevant to a criminal prosecution”; or (2) “[a] formal statement [such that] a reasonable person in the position of the declarant would objectively foresee that the primary purpose of the statement was for use in the investigation or prosecution of a crime.” 605 F.3d at 778; cf. United States v. Solorio, 669 F.3d 943, 953 (9th Cir.2012) (“[Statements made out-of-court with a primary purpose other than possible prosecutorial use are nontestimonial.”). We did not choose in Smalls between the two definitions because we found the statement at issue in Smalls to be nontestimonial “regardless of which of the foregoing definitions we apply.” 605 F.3d at 778. We employ the same approach here and conclude that the statement at issue is not testimonial under either definition. Mr. Clark contends that the evidence— through Mr. Lindberg’s testimony—of Mr. Gordon’s out-of-court statements referring to Mr. Clark as “heat-resistant” violates Bruton. However, because the statement is not testimonial, we disagree. The statement was made to Mr. Lindberg, a co-conspirator, in furtherance of the underlying conspiracy." }, { "docid": "7077809", "title": "", "text": "common law required: unavailability and a prior opportunity for cross-examination.’ ” (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354)). Like our 'sister circuits, we have recognized the need to interpret Bruton “consistently] with the present state of Sixth Amendment law.” Smalls, 605 F.3d at 768 n. 2; see, e.g., United States v. FigueroaCartagena, 612 F.3d 69, 85 (1st Cir.2010); United States v. Johnson, 581 F.3d 320, 325-26 (6th Cir.2009); United States v. Avila Vargas, 570 F.3d 1004, 1008-09 (8th Cir.2009). Notably, Crawford made clear that the Confrontation Clause applies only if a statement is “testimonial” in nature, for “[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis, 547 U.S. at 821, 126 S.Ct. 2266 (citing Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Indeed, reflecting on the text and history of the Confrontation Clause, the Court in Crawford explained that out-of-court testimonial statements, or the “ ‘bearflng of] testimony,’ ” were the core “evil[s] at which the Confrontation Clause was directed.” 541 U.S. at 50-51, 124 S.Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)); see id. at 50, 124 S.Ct. 1354 (noting the Founders’ concern with the “use of ex parte examinations as evidence against the accused”); see also Bullcoming, 131 S.Ct. at 2713 (“[Fidelity to the Confrontation Clause [does not] permit[] admission of [testimonial statements of witnesses absent from trial,” absent a showing that “the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (fourth alteration in original) (quoting Crawford, 541 U.S. at 59, 124 S.Ct. 1354) (internal quotation marks omitted)). Crawford indicates that the class of testimonial statements that fall within the protective ambit of the Confrontation Clause includes, but is not limited to, statements covered also by Bruton. See Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (listing as examples of testimonial statements “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ” (emphasis added) (quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736," }, { "docid": "20764089", "title": "", "text": "against anyone. See United States v. Jones, 716 F.3d 851, 856 (4th Cir.2013). The Confrontation Clause is therefore inapplicable, though such statements must, to be admissible, still satisfy the requirements of the Federal Rules of Evidence, here 804(b)(3). Dargan devotes a significant portion of his brief to contending that Shanaberger’s testimony was inadmissible under the Supreme Court’s holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In that case, Bruton and his co-conspirator were tried jointly. The latter declined to testify, but his confession — which directly implicated Bru-ton — was admitted against him at trial. The district judge gave a limiting instruction that the confession did not qualify as evidence against Bruton. Id. at 124-25, 128, 88 S.Ct. 1620. On appeal, the Supreme Court reversed, noting the “substantial risk” that the jury would ignore the limiting instruction and thereby violate Bruton’s Confrontation Clause rights. Id. at 126, 88 S.Ct. 1620. Dargan’s reliance on Bruton is misplaced for several reasons. First, Dargan and Harvey were not tried jointly. Harvey pled guilty and Dargan received an individual trial. The formal structure of a Bruton claim is therefore absent. The “substantial risk” that a confession admitted against one defendant might affect the jury’s verdict regarding his co-defendant is not presented on these facts. See United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). Second, and more significantly, Bruton is simply irrelevant in the context of non-testimonial statements. Bruton espoused a prophylactic rule designed to prevent a specific type of Confrontation Clause violation. Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton. See, e.g., United States v. Clark, 717 F.3d 790, 816 (10th Cir.2013) (“[T]he Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements.”) (citation and internal quotation marks omitted). Our conclusion that Harvey’s statements were nontestimonial therefore suffices to dispatch Dargan’s Bruton argument as well. IV. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. We have reviewed the additional arguments contained in the supplemental pro" }, { "docid": "14958442", "title": "", "text": "seek to join this argument. Def. Br. 60 n. 27. As discussed supra note 1, adoption by reference is permitted only to the extent we can readily apply the proponent’s arguments to the adopter's case. Some of the defendants' Confrontation Clause arguments are purely legal and can readily be adopted. Others are fact-specific, rendering adoption by reference inappropriate. Clarke, Demerieux, and Nixon have made fact-specific arguments that explain how they believe their constitutional rights were violated by the introduction of their codefendants' out-of-court statements. We therefore limit our consideration of defendants' fact-specific arguments to those particular defendants. . The government introduced ten confessions made by five different defendants. Two of those defendants, De Four and Straker, testified at trial. Defendants cannot raise Confrontation Clause challenges to the admission of those pretrial statements, as they had the opportunity to subject De Four and Straker to cross-examination. See, e.g., Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Furthermore, none of the defendants identifies any statements or redactions in those confessions that implicated him. On appeal, therefore, we focus on defendants' arguments concerning the introduction of Clarke, Demerieux, and Sealey’s confessions. . Our approval of the use of neutral pronouns and other general terms accords with that of ■other circuits. See, e.g., United States v. Vasilakos, 508 F.3d 401, 407-08 (6th Cir.2007) (collecting federal appellate decisions); see also United States v. Ramos-Cardenas, 524 F.3d 600, 608-09 (5th Cir.2008); United States v. Vega Molina, 407 F.3d 511, 519-21 (1st Cir.2005); United States v. Sutton, 337 F.3d 792, 799-801 (7th Cir.2003). . Clarke and Demerieux also argue that because their statements were interlocking and reinforced one another, it furthered the inevitable association. Given our conclusion the redactions obscured the references to each man in the other’s statement, we disagree that the statements were interlocking. . Defendants also argue that the Supreme Court's decision in Crawford, should increase the skepticism with which we review Bruton claims. See 541 U.S. 36, 124 S.Ct. 1354. Crawford announced a general rule of inadmissibility of out-of-court statements by witnesses who are unavailable and so" }, { "docid": "14958443", "title": "", "text": "implicated him. On appeal, therefore, we focus on defendants' arguments concerning the introduction of Clarke, Demerieux, and Sealey’s confessions. . Our approval of the use of neutral pronouns and other general terms accords with that of ■other circuits. See, e.g., United States v. Vasilakos, 508 F.3d 401, 407-08 (6th Cir.2007) (collecting federal appellate decisions); see also United States v. Ramos-Cardenas, 524 F.3d 600, 608-09 (5th Cir.2008); United States v. Vega Molina, 407 F.3d 511, 519-21 (1st Cir.2005); United States v. Sutton, 337 F.3d 792, 799-801 (7th Cir.2003). . Clarke and Demerieux also argue that because their statements were interlocking and reinforced one another, it furthered the inevitable association. Given our conclusion the redactions obscured the references to each man in the other’s statement, we disagree that the statements were interlocking. . Defendants also argue that the Supreme Court's decision in Crawford, should increase the skepticism with which we review Bruton claims. See 541 U.S. 36, 124 S.Ct. 1354. Crawford announced a general rule of inadmissibility of out-of-court statements by witnesses who are unavailable and so not subject to cross-examination. The Court there dealt with statements that, unlike the statements here, were not otherwise admissible as codefendant confessions. The Crawford Court held that the admissibility against a defendant of a testimonial statement by a non-testifying declarant depends, not merely on the statement's reliability, but on whether the defendant had a prior opportunity to cross-examine the declarant, because the Confrontation Clause establishes \"that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 61, 124 S.Ct. 1354. Crawford applies to statements admitted against a defendant; a statement that has been effectively Bruton-ized, however, is one that has been redacted so that it can, with appropriate limiting jury instructions, be deployed only against the declarant and not against the objecting codefendant. See Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620; see also Richardson, 481 U.S. at 206, 107 S.Ct. 1702. Crawford accordingly does not apply here, where we have determined that the statements are admissible under the Bruton line of cases because, properly used, they create no" }, { "docid": "5090013", "title": "", "text": "find that the government satisfied its burden of proving the intent element of § 2119(3). B. Admission of Alberto’s Statements Gabriel appeals the district court’s decision to allow introduction of Alberto’s recorded statements from his telephone call with his mother. Admission of this evidence, he argues, violated his rights under the Confrontation Clause of the Sixth Amendment, as outlined by the Supreme Court precedents of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Gabriel did not properly preserve his Crawford objection, so our review is for plain error only. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). Since Gabriel did preserve his Bruton objection at trial, we review the district court’s determination under Bruton de novo. United States v. Vega-Molina, 407 F.3d 511, 519 (1st Cir.2005). The Supreme Court’s decision in Crawford stands for the proposition that “the Confrontation Clause bars admission of testimonial hearsay in a criminal case unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination.” United States v. Earle, 488 F.3d 537, 542 (1st Cir.2007) (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354). The parties agree that Alberto was unavailable for cross-examination, as he invoked his right not to testify. Thus, admissibility of Alberto’s conversation would violate defendant Gabriel’s Confrontation Clause rights unless the statements were either non-testimonial or not hearsay. Since Gabriel does not challenge whether or not Alberto’s statements were hearsay, we turn to the question of whether they were testimonial. The Supreme Court provides the following examples to guide a court’s determination of whether an out-of-court statement is testimonial: Testimonial statements take the form of 1) “ex parte in-court testimony or its functional equivalent;” 2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;” and 3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at" }, { "docid": "5366451", "title": "", "text": "doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Here, because Figueroa’s sentence does not exceed the statutory maximum, this finding did not need to be made by a jury and thus Figueroa’s Sixth Amendment rights were not violated. .“We review a District Court's decision to admit or exclude evidence for abuse of discretion, although our review is plenary as to the district court’s interpretation of the Federal Rules of Evidence.” United States v. Duka, 671 F.3d 329, 348 (3d Cir.2011) (internal quotation marks and citations omitted). .Figueroa also challenges the admission of this statement under the Confrontation Clause and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The protections of the Confrontation Clause and Bru-ton apply only to testimonial statements. See United States v. Berrios, 676 F.3d 118, 126-29 (3d Cir.2012) (noting that \"where nontestimo-nial hearsay is concerned, the Confrontation Clause has no role to play in determining the admissibility of a declarant's statement” and that Bruton is also limited to testimonial statements). Bayard’s statement to Parry was not a testimonial statement. See Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (identifying as the core class of testimonial statements \"ex parte in-court testimony,” \"extrajudicial statements,\" and \"statements ... made under circumstances, which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”). Therefore, Figueroa’s Confrontation Clause and Bruton argument is inapposite. . \"We review a district court’s decision to admit or exclude evidence for abuse of discretion, and such discretion is construed especially broadly in the context of Rule 403.” United States v. Kemp, 500 F.3d 257, 295 (3d Cir.2007) (internal quotation marks and citation omitted). . For standard of review see footnote 13. . “Review of the legal standard enunciated in a jury instruction is plenary, ... but review of the wording of the instruction, i.e., the expression, is for abuse of discretion.’’ United States v. Yeaman, 194 F.3d 442, 452 (3d Cir.1999) (citations omitted)." }, { "docid": "11371047", "title": "", "text": "reasonable’ ” under United States v. Jenkins, 712 F.3d 209, 214 (5th Cir.2013) (quoting United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008)). Echeverría suggests that he should have received a downward departure, but this suggestion is not supported by any authority. A district court’s refusal to grant a downward departure is not renewable “unless it was based on a misinterpretation of the Sentencing Guidelines.” Because Echeverría does not identify any such misinterpretation, we affirm his sentence. III. We next consider Vasquez’s arguments. Vasquez argues first that his conviction is contrary to Bruton v. United States, 391 U.S. 123, 126-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). According to Vasquez, his conviction violates the Confrontation Clause because Echeverria’s “confession naming him as a participant in the crime was introduced at their joint trial” through a third-party witness, Sanchez-Alvarez, without any opportunity to cross-examine the actual declarant, Echeverría. Because Vasquez raises his Bruton challenge for the first time on appeal, he must show that there was plain error affecting his substantial rights. Under the plain error standard, Vasquez’s argument must be rejected. Many circuit courts have held that Bruton applies only to statements by co-defendants that are testimonial under Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As these courts have observed, the Supreme Court described “statements from one prisoner to another” as “clearly nontestimonial” for the purposes of the Crawford analysis in Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (analyzing the facts of Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion)). Based on this dicta, the Fourth Circuit held in United States v. Dargan, 738 F.3d 643, 650-51 (4th Cir.2013), that the rule of Bruton was “simply irrelevant in the context of nontestimonial statements” made “to a cellmate in an informal setting.” The Third Circuit likewise held in United States v. Berrios, 676 F.3d 118, 128 (3d Cir.2012), that Bruton is no longer applicable to a non-testimonial “prison yard conversation” because “Bruton is no more than a by-product" }, { "docid": "7077808", "title": "", "text": "Bruton was decided, the Supreme Court’s Confrontation Clause jurisprudence has evolved, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and extending through Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), to the Court’s more recent Confrontation Clause decisions: specifically, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); and Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). “In Crawford, the Supreme Court held that the Sixth Amendment precluded the admission of out-of-court statements that are testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” Patterson, 713 F.3d at 1246-47; see Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354; see also Bryant, 131 S.Ct. at 1153 (“[Crawford ] limited the Confrontation Clause’s reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment ‘demands what the common law required: unavailability and a prior opportunity for cross-examination.’ ” (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354)). Like our 'sister circuits, we have recognized the need to interpret Bruton “consistently] with the present state of Sixth Amendment law.” Smalls, 605 F.3d at 768 n. 2; see, e.g., United States v. FigueroaCartagena, 612 F.3d 69, 85 (1st Cir.2010); United States v. Johnson, 581 F.3d 320, 325-26 (6th Cir.2009); United States v. Avila Vargas, 570 F.3d 1004, 1008-09 (8th Cir.2009). Notably, Crawford made clear that the Confrontation Clause applies only if a statement is “testimonial” in nature, for “[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis, 547 U.S. at 821, 126 S.Ct. 2266 (citing Crawford, 541 U.S. at 51, 124 S.Ct. 1354). Indeed, reflecting on the text and history of the Confrontation Clause, the Court in Crawford explained that out-of-court testimonial statements, or the “ ‘bearflng of] testimony,’ ” were the core “evil[s] at which the Confrontation Clause was directed.” 541 U.S." }, { "docid": "20764088", "title": "", "text": "statements to be used at trial—that is, whether the de-clarant would have expected or intended to ‘bear witness’ against another in a later proceeding.” Id. (citing Crawford, 541 U.S. at 52, 124 S.Ct. 1354). This definition flows from the Court’s recognition that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 541 U.S. at 50, 124 S.Ct. 1354. Under this standard, Harvey’s comments to Shanaberger are plainly non-testimonial. Harvey made the challenged statements to a cellmate in an informal setting—a scenario far afield from the type of declarations that represented the focus of Crawford’s concern. The Supreme Court itself has noted, as a general matter, that “statements from one prison er to another” are “clearly nontestimonial.” Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Harvey’s jailhouse disclosures to a casual acquaintance were not made with an eye towards trial. He had no plausible expectation of “bearing witness” against anyone. See United States v. Jones, 716 F.3d 851, 856 (4th Cir.2013). The Confrontation Clause is therefore inapplicable, though such statements must, to be admissible, still satisfy the requirements of the Federal Rules of Evidence, here 804(b)(3). Dargan devotes a significant portion of his brief to contending that Shanaberger’s testimony was inadmissible under the Supreme Court’s holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In that case, Bruton and his co-conspirator were tried jointly. The latter declined to testify, but his confession — which directly implicated Bru-ton — was admitted against him at trial. The district judge gave a limiting instruction that the confession did not qualify as evidence against Bruton. Id. at 124-25, 128, 88 S.Ct. 1620. On appeal, the Supreme Court reversed, noting the “substantial risk” that the jury would ignore the limiting instruction and thereby violate Bruton’s Confrontation Clause rights. Id. at 126, 88 S.Ct. 1620. Dargan’s reliance on Bruton is misplaced for several reasons. First, Dargan and Harvey were not tried jointly." }, { "docid": "7077805", "title": "", "text": "of confrontation as explicated in Bruton. “We review de novo the legal issue of whether the admission of the non-testifying codefendant’s statements/confession in a joint trial violated the defendant’s Sixth Amendment right to confrontation.” United States v. Sarracino, 340 F.3d 1148, 1158-59 (10th Cir.2003) (quoting United States v. Verduzco-Martinez, 186 F.3d 1208, 1212 (10th Cir.1999)) (internal quotation marks omitted). The Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const, amend. VI. “In Bruton, the Court held that it would violate the Confrontation Clause to allow the confession of a non-testifying co-defendant that implicated the defendant to be used against that defendant [at their joint trial].” United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir.2013); see United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.2010) (“In Bruton, the Court held that [the] defendant was deprived'Of his Sixth Amendment right to confrontation where his accomplice’s confession ... was introduced at their joint trial.”); see also Greene v. Fisher, — U.S. -, 132 S.Ct. 38, 42-43, 181 L.Ed.2d 336 (2011) (noting that Bruton establishes that “the Confrontation Clause forbids the prosecution to introduce a non-testifying codefendant’s confession implicating the defendant in the crime”). Bruton applies “even if the jury is instructed to consider that confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); see Dickerson v. United States, 530 U.S. 428, 458, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting) (noting that Bruton “was based ... upon the self-evident proposition that the inability to cross-examine an available witness whose damaging out-of-court testimony is introduced violates the Confrontation Clause, combined with the conclusion that in these circumstances a mere jury instruction can never be relied upon to prevent the testimony from being damaging” (emphases added)). We have cautioned that Bruton’s rule is “a narrow one”; it applies only when the co-defendant’s statement is “so inculpatory as to the defendant that the practical and human limitations of the jury system cannot be ignored.”" }, { "docid": "7077807", "title": "", "text": "Sarracino, 340 F.3d at 1160 (quoting United States v. Rahseparian, 231 F.3d 1267, 1277 (10th Cir.2000)) (internal quotation marks omitted); see United States v. Nash, 482 F.3d 1209, 1218 (10th Cir.2007) (“[T]he rule announced in Bruton is a limited one.”). However, Bruton provides the foundation for affirmative remedial measures—most notably, severance—upon a proper showing that a co-defendant’s statement offered into evidence would inculpate the defendant. See Nash, 482 F.3d at 1217-18 (discussing the Bruton process). These measures are meant to avoid the extrinsic (i.e., collateral) damage to a defendant from the jury’s undue consideration of a co-defendant’s facially inculpatory statement—a factor that the jury would be highly unlikely to “disregard” and one that cannot be remedied by a curative instruction. See Bruton, 391 U.S. at 128-29, 88 S.Ct. 1620. When evidence is admitted in violation of Bruton, “we must reverse unless we can conclude beyond a reasonable doubt that the constitutional error was harmless.” Sarracino, 340 F.3d at 1161 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Since Bruton was decided, the Supreme Court’s Confrontation Clause jurisprudence has evolved, beginning with Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and extending through Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), to the Court’s more recent Confrontation Clause decisions: specifically, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011); and Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). “In Crawford, the Supreme Court held that the Sixth Amendment precluded the admission of out-of-court statements that are testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” Patterson, 713 F.3d at 1246-47; see Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354; see also Bryant, 131 S.Ct. at 1153 (“[Crawford ] limited the Confrontation Clause’s reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment ‘demands what the" }, { "docid": "5214801", "title": "", "text": "that Gist’s testimony about Lewis’s statement violated his right to confrontation under the Sixth Amendment. Because the appellants did ? not raise a Confrontation Clause objection to this evidence in the District Court, it is reviewed for plain error. United States v. Richards, 241 F.3d 335, 341-42 (3d Cir. 2001). To satisfy the plain error standard, the defendant must prove that there was (1) an error; (2) that is plain, i.e., obvious under the law at the time of review; and (3) that “affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If those conditions are met, we may exercise our discretion to order correction, but only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467, 117 S.Ct. 1544. An error is considered to have affected substantial rights when it “ ‘affected the outcome of the district court proceedings.’ ” United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir.2009) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In the wake of the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), we have held that a witness’s statement implicates the Confrontation Clause only if it is testimonial. United States v. Berrios, 676 F.3d 118, 126 (3d Cir.2012). Under Bruton v. United States, using a non-testifying codefendant’s confession violates a defendant’s rights under the Confrontation Clause. 391 U.S. 123, 127-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Critically, we have asserted that, “because Bruton is no more than a byproduct of the Confrontation Clause, the Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.” Berrios, 676 F.3d at 128. In view of our holding in Berrios, we conclude" }, { "docid": "11371048", "title": "", "text": "error standard, Vasquez’s argument must be rejected. Many circuit courts have held that Bruton applies only to statements by co-defendants that are testimonial under Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As these courts have observed, the Supreme Court described “statements from one prisoner to another” as “clearly nontestimonial” for the purposes of the Crawford analysis in Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (analyzing the facts of Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion)). Based on this dicta, the Fourth Circuit held in United States v. Dargan, 738 F.3d 643, 650-51 (4th Cir.2013), that the rule of Bruton was “simply irrelevant in the context of nontestimonial statements” made “to a cellmate in an informal setting.” The Third Circuit likewise held in United States v. Berrios, 676 F.3d 118, 128 (3d Cir.2012), that Bruton is no longer applicable to a non-testimonial “prison yard conversation” because “Bruton is no more than a by-product of the Confrontation Clause.” The First, Second, Sixth, Eighth, Ninth, and Tenth Circuits have also limited Bruton to testimonial statements only. Vasquez has never disputed the government’s characterization of Echeverria’s jailhouse confession as non-testimonial. Accordingly, the district court’s decision to admit Sanchez-Alvarez’s testimony regarding Echeverria’s non-testimonial confession was entirely in accordance with most of the circuit authorities interpreting the relationship between Bruton and Crawford. The district court therefore did not commit plain error, and Vasquez’s Bruton challenge must be rejected. IV. Vasquez’s remaining arguments also fail to identify any reversible error. In particular, his claim for ineffective assistance of counsel was never presented to the district court. Since the record does not permit us to “ ‘fairly evaluate the merits of the claim,”’ this challenge is premature on direct appeal under United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.2007) (quoting United States v. Partida, 385 F.3d 546, 568 (5th Cir.2004)). The district court also did not err in admitting evidence of Vasquez’s prior conviction for possession of heroin under Rule 404(b) of the" }, { "docid": "11371052", "title": "", "text": "246-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). CONCLUSION For the reasons stated above, we AFFIRM the convictions and sentences as to both Echeverría and Vasquez. AFFIRMED. . United States v. Burton, 324 F.3d 768, 770 (5th Cir.2003); United States v. Galvan, 949 F.2d 777, 783 (5th Cir.1991). . United States v. Dowl, 619 F.3d 494, 500 (5th Cir.2010); United States v. McIntosh, 280 F.3d 479, 483 (5th Cir.2002). . See United States v. Shoemaker, 746 F.3d 614, 624-25 n. 11 (5th Cir.2014); United States v. Dixon, 132 F.3d 192, 198 (5th Cir.1997). As for Vasquez's challenge to Sanchez-Alvarez’s testimony under Bruton v. United States, 391 U.S. 123, 127-28, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), we address that argument below. Echeverría cannot himself invoke Bruton because \"[t]he rule enunciated in Bruton stems from the right to confrontation and is designed to protect the non-testifying confessor's codefendant, not the confessor himself.” See United States v. Morales, 477 F.2d 1309, 1316 (5th Cir.1973). .See Burton, 324 F.3d at 770. . United States v. McClatchy, 249 F.3d 348, 360 (5th Cir.2001). . See United States v. Nutall, 180 F.3d 182, 188 (5th Cir.1999). . See United States v. Barrandey, 481 Fed.Appx. 221, 224 (5th Cir.2012); United States v. Martinez, 172 F.3d 866, 1999 WL 129663, at *1 (5th Cir.1999) (per curiam); United States v. Gauthier, 248 F.3d 1138, 2001 WL 85819, at *1 (5th Cir.2001) (per curiam). . See United States v. Alaniz, 726 F.3d 586, 615 (5th Cir.2013). . United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.2010). . United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir.2008). . United States v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). . United States v. Dale, 614 F.3d 942, 958-59 (8th Cir.2010). . Smith v. Chavez, 11-55211, 2014 WL 1229918, at *1 (9th Cir. Mar. 26, 2014). . United States v. Clark, 717 F.3d 790, 816 (10th Cir.2013). . We applied a similar analysis in our unpublished decision in United States v. Surtain, 519 Fed.Appx. 266, 288 (5th Cir.2013). By contrast, because the defendant “was tried alone,” we did not address" } ]

[ { "docid": "4742640", "title": "", "text": "18 U.S.C. § 922(g)(3), and one count of manufacturing less than fifty marijuana plants, contrary to 21 U.S.C. § 841(a)(1). At sentencing, over Angel’s objection, the district court imposed a four-level enhancement for use of a firearm in connection with another felony under U.S.S.G. § 2K2.1(b)(6). This enhancement boosted Angel’s adjusted offense level (taking into account other enhancements not at issue in this appeal and a criminal history category of I) from Level 20, with an advisory Guidelines range of 33-41 months, to Level 24, with a recommended Guidelines range of 51-63 months. The district court sentenced Angel to concurrent terms of 57 months on both counts. II. On appeal, Angel contends that the district court erred in applying the four-level enhancement under § 2K2.1(b)(6), which instructs a sentencing court to increase a defendant’s base offense level by four “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6) (2007) (emphasis added). “[W]e ... review a district court’s calculation of the advisory sentencing Guidelines as part of our obligation to determine whether the district court imposed a sentence that is procedurally unreasonable.” United States v. Bullock, 526 F.3d 312, 315 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). In doing so, we review the district court’s factual findings for clear error and its legal conclusions de novo. Id. at 315-16. Although the Guidelines do not define the phrase “in connection with” set forth in § 2K2.1(b)(6), the accompanying Commentary provides some guidance, explaining that subsection (b)(6) applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1(b)(6), cmt. n. 14(A) (2007). Specifically, “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia]]] ... [the enhancement] is warranted because the presence of the firearm has the potential of facilitating another felony offense.” Id. at cmt. n. 14(B)(ii). Consequently, “[a]s these application notes make clear, the firearms in question need not" } ]

[ { "docid": "7830964", "title": "", "text": "not establish a sufficient nexus between the firearm possession and the drug-possession felony. While the first argument lacks merit, the second warrants vacating Shields’s sentence. The district court did not clearly err in finding that Shields committed another felony offense. The commentary to § 2K2.1 states that “ ‘[a]nother felony offense,’ for purposes of subsection (b)(6), means any Federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” App. Notes, cmt. 14(C). Tennessee law forbids knowingly possessing a controlled substance, and makes such possession a felony when the person has two or more prior drug convictions. Tenn. Code Ann. § 39-17-418(a), (e). The district court found that Shields possessed the marijuana and cocaine discovered by officers on the porch where he was sitting, which would constitute a felony because of his prior Tennessee drug convictions. The Government presented enough evidence to support this finding. Officer Jackson found the baggies with small amounts of marijuana and cocaine sitting on top of Shields’s wallet on the porch. Moore testified that Shields had marijuana on him when he came to the porch to visit with Moore. Although Shields disputes Moore’s testimony, the district court considered Moore to be a “pretty credible witness,” and there is no reason for us to disregard that finding. Finally, Shields admitted not only that he regularly smoked marijuana, but also that he was planning on smoking it when officers approached him on the date in question. These facts permitted the district court’s finding by a preponderance of the evidence that Shields had possession, whether actual or constructive, of the drugs, and thus that Shields committed another felony offense. Despite the existence of another felony offense, application of the sentencing enhancement was not appropriate because there was not a sufficient nexus between the firearm and the drugs recovered during this incident. The commentary to § 2K2.1 provides that a firearm is possessed “in connection with” another felony “if the firearm ... facilitated, or" }, { "docid": "9921484", "title": "", "text": "approximately .9 grams of crack cocaine packaged in the cut corners of plastic baggies. Also on the table were a razor blade, a box of plastic bags, and several bags with the corners already cut. According to defendant, Earvin and a friend were smoking marijuana and cocaine at home on March 4,1998. Defendant states that he only sold marijuana, although his friend was selling rock cocaine. When police arrived, Earvin claims that he ran upstairs not knowing who exactly was at the door. Defendant does not deny that the pistol was his, but he claims that it was never found inside the house. II. APPLICABLE SENTENCING GUIDELINES The United States Sentencing Guidelines (“Guidelines”) indicate that the base offense level for a felon in possession violation under 18 U.S.C. § 922(g)(1) is 20 if defendant had one prior felony conviction of either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A). Earvin was convicted of armed robbery (party to a crime) in Milwaukee County Circuit Court Case No. F-951467 in November 1995. In addition, specific offense characteristic § 2K2.1(b)(5) of the Guidelines indicates that a 4-point enhancement to this base offense level is warranted if defendant “used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). Specifically, then, Count I could merit an offense level of 24 points if the enhancement is applied. Count II, possession with intent to distribute under 21 U.S.C. § 841(a)(1), starts at a base offense level of 16, consistent with Ear-vin’s possession of .9 grams of cocaine base. See U.S.S.G. § 2Dl.l(e)(12). Because defendant will also be sentenced for use of a firearm in relation to drug trafficking under 18 U.S.C. § 924(c) (imposing a five-year mandatory consecutive sentence), the 2-point enhancement for possessing a firearm under § 2D1.1(b)(1) cannot be sought on Count II. See U.S.S.G. § 2K2.4, comment, (n. 2). Finally, the Guidelines indicate that Counts I and II should be grouped together because the drug trafficking charge embodies conduct that may be treated as a specific offense characteristic in or adjustment to the guideline" }, { "docid": "4742639", "title": "", "text": ".22 caliber pistol was hanging on a chair at the foot of the bed, and the .32 caliber revolver was located between the mattress and box springs. The ammunition for the firearms was in a drawer in the night stand next to the bed. Angel was interviewed at the residence by the agent and then executed a written statement, in which he admitted that he grew the marijuana, but claimed that it was for his personal use to alleviate back pain. He stated that the shotgun, .32 caliber handgun, and the ammunition belonged to his current wife; the .22 revolver purportedly belonged to his ex-wife. Angel acknowledged that he slept in the bedroom where the firearms and marijuana were found, but he could not recall the last time he used them. He maintained that he had only grown marijuana “once or twice” and did not sell it. Angel was subsequently indicted and convicted by a jury on one count of possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3), and one count of manufacturing less than fifty marijuana plants, contrary to 21 U.S.C. § 841(a)(1). At sentencing, over Angel’s objection, the district court imposed a four-level enhancement for use of a firearm in connection with another felony under U.S.S.G. § 2K2.1(b)(6). This enhancement boosted Angel’s adjusted offense level (taking into account other enhancements not at issue in this appeal and a criminal history category of I) from Level 20, with an advisory Guidelines range of 33-41 months, to Level 24, with a recommended Guidelines range of 51-63 months. The district court sentenced Angel to concurrent terms of 57 months on both counts. II. On appeal, Angel contends that the district court erred in applying the four-level enhancement under § 2K2.1(b)(6), which instructs a sentencing court to increase a defendant’s base offense level by four “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6) (2007) (emphasis added). “[W]e ... review a district court’s calculation of the advisory sentencing Guidelines as part" }, { "docid": "4047936", "title": "", "text": "ALARCON, Circuit Judge: Augustin Reyes Gavilan (Gavilan) appeals from the order sentencing him to 10 months of imprisonment, three years supervised release and a fine of $1075.00 for possession of marijuana in violation of 21 U.S.C. § 844, and for unlawful possession of a firearm by a user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Gavilan contends he is entitled to a six-level downward adjustment to his base offense level pursuant to United States Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(l), because he possessed the firearm for the lawful purpose of self-defense. We affirm because we conclude that the district court did not clearly err in finding that Gavilan did not possess the firearm solely for a lawful purpose. I. On February 26, 1991, federal narcotics agents executed a search warrant for Gavi-lan’s residence. During the course of the search, the agents seized 43 marijuana plants in the garage, a small amount of marijuana and two marijuana pipes in the living room, a large quantity of plastic baggies in an upstairs bedroom, and a .22 caliber revolver from a nightstand in the master bedroom. Gavilan was arrested following the seizure of these items. After he was advised of his constitutional rights, Gavilan told the agents that he was growing the marijuana plants solely for his personal use. He admitted to the police that he had been smoking marijuana since 1971. In his interview with the probation officer, Gavilan explained that he purchased the gun to protect his home, his girlfriend, and himself after his home was burglarized in 1979. He also stated that the gun had no connection to the cultivation of marijuana at his residence. Shortly after his arrest, Gavilan and the prosecutor agreed to a pre-indictment disposition of his case. On March 25, 1991, Gavilan pled guilty to a two-count information charging him with possession of approximately four kilograms of marijuana and unlawful use of a controlled substance while in possession of a firearm. Gavilan filed written objections to the presentence report. He asserted that the probation department erred by not applying U.S.S.G. § 2K2.1(b)(l) because" }, { "docid": "11448151", "title": "", "text": "recovered the gun from Toombs, and also found a small bag of marijuana under a couch in his home. Toombs identified Irby as the person with whom he had struggled over the gun, and Irby was consequently arrested. In the course of questioning, Irby admitted that he had possessed the revolver and also admitted hiding the revolver under his coat when he went to Toombs’s home. Subsequently, Irby was charged with and pleaded guilty to the offense of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He was not charged with any offense relating to his possession of marijuana. A presentence report (“PSR”) was prepared, in which a probation officer recommended adjusting Irby’s base offense level by four points pursuant to § 2K2.1(b)(5) because he had used or possessed a firearm in connection with another felony offense, namely possession of marijuana. The probation officer reasoned that Irby’s possession of marijuana at the time of the firearm offense was felonious conduct under 21 U.S.C. § 844(a) because Irby had prior drug offense convictions. The probation officer also reported that Irby had placed a collect call to Toombs after he had entered his guilty plea but prior to sentencing. Toombs reported that in the course of that conversation, Irby had asked Toombs why he had given the gun to the police. Furthermore, according to Toombs, Irby requested that Toombs not testify against him if he were asked to do so. Based on this information, the probation officer recommended adding two points to Irby’s offense level pursuant to § 8C1.1 for obstruction of justice. The district court imposed the two suggested enhancements and sentenced Irby to 92 months imprisonment. Irby now appeals, arguing that the imposition of an upward adjustment pursuant to § 2K2.1 (b)(5) was inappropriate, in that his possession of marijuana constituted a misdemeanor, rather than a felony. Irby also suggests that the imposition of an enhancement for obstruction of justice, pursuant to § 3C1.1, was in error, as his telephone call to Toombs did not constitute a threat. II. DISCUSSION We review a" }, { "docid": "997926", "title": "", "text": "guilty to all of the counts in the indictment, but later entered into a plea agreement with the government. The agreement required Moses to plead guilty to counts one and five. In return, the government agreed to dismiss the remaining counts of the indictment. In June of 2001, Moses withdrew his not guilty plea and pled guilty as agreed. A presentence investigation report (PSR) was prepared shortly after Moses entered his guilty plea. The PSR recommended that the district court enhance Moses’s base offense level by two points pursuant to United States Sentencing Guidelines § 2D1.1(b)(1). This section provides for such an enhancement where a defendant possesses a firearm in connection with a drug-trafficking offense. The PSR recommended an enhancement under this section based upon the finding that Moses had kept a firearm in the truck that he used to harvest the marijuana. Moses objected to the § 2Dl.l(b)(l) enhancement. At his sentencing hearing, Moses testified that the weapons in his house and truck were unrelated to his offense. He said that many of the guns were in taped boxes that had been brought to his house by Buff, who had allegedly asked Moses to store the weapons there. Moses maintained that the other firearms found in his house, as well as the rifle on the gun rack in his truck, were used only for hunting. The district court, however, did not give full credence to Moses’s testimony. Although the court stated that Moses might have used his rifles solely for hunting, it did not believe that Moses hunted with the .22 caliber Ruger pistol recovered from his house. The court concluded that it was not clearly improbable that Moses had possessed this pistol in connection with his offense, and therefore overruled Moses’s objection to the § 2Dl.l(b)(l) enhancement. This timely appeal followed. II. ANALYSIS A. Firearm enhancement Moses challenges the enhancement of his base offense level pursuant to United States Sentencing Guidelines § 2Dl.l(b)(l). This section provides for a two-point increase in a defendant’s offense level if a firearm is “possessed” during a drug-trafficking crime. An enhancement under §" }, { "docid": "997925", "title": "", "text": "to interview Moses about his role in maintaining the marijuana patch. The agents met Moses at his residence, at which time Moses admitted to growing the marijuana and consented to a search of his property. This search led to the recovery of several firearms from Moses’s house, including a .22 caliber Rug-er pistol. In addition, a shotgun was removed from the gun rack mounted in Moses’s pickup truck. A federal grand jury in the Eastern District of Tennessee returned a five-count indictment against Moses on January 11, 2000. The first two counts charged Moses with conspiring to manufacture marijuana, in violation of 21 U.S.C. § 846, and possessing marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Counts three and four alleged that Moses had possessed various firearms in furtherance of drug-trafficking offenses, in violation of 18 U.S.C. § 924(c). Pursuant to 21 U.S.C. § 853, count five sought the forfeiture of the real property and truck that Moses had allegedly used to facilitate his drug-trafficking offenses. Moses initially pled not guilty to all of the counts in the indictment, but later entered into a plea agreement with the government. The agreement required Moses to plead guilty to counts one and five. In return, the government agreed to dismiss the remaining counts of the indictment. In June of 2001, Moses withdrew his not guilty plea and pled guilty as agreed. A presentence investigation report (PSR) was prepared shortly after Moses entered his guilty plea. The PSR recommended that the district court enhance Moses’s base offense level by two points pursuant to United States Sentencing Guidelines § 2D1.1(b)(1). This section provides for such an enhancement where a defendant possesses a firearm in connection with a drug-trafficking offense. The PSR recommended an enhancement under this section based upon the finding that Moses had kept a firearm in the truck that he used to harvest the marijuana. Moses objected to the § 2Dl.l(b)(l) enhancement. At his sentencing hearing, Moses testified that the weapons in his house and truck were unrelated to his offense. He said that many of the" }, { "docid": "21558455", "title": "", "text": "At most, he claims, this evidence creates an inference of possession, and not use. The district court was free to rely upon Marceau’s marijuana possession, in combination with the other evidence, to draw an inference of use. See e.g., United States v. Mack, 343 F.3d 929, 933-34 (8th Cir.2003) (evidence of defendant’s possession of small, “user quantity” of marijuana, where arresting officer smelled marijuana and where defendant had previously been in a dispute over marijuana, is sufficient to support conviction for unlawful use). Finally, the district court was not required to reject the FBI agent’s testimony as hearsay, as urged by Marceau, because the Rules of Evidence do not apply to sentencing hearings; a district court may consider any relevant evidence so long as the evidence “ ‘has sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Green, 426 F.3d 64, 66 (1st Cir.2005)(quoting U.S.S.G. § 6A1.3(a)). Whether any particular evidence is sufficiently reliable is within the broad discretion of the district court. Id. We detect no abuse of that discretion here. Based on the foregoing, we affirm the district court’s finding that Marceau was a “prohibited person” within the meaning of U.S.S.G. § 2K2.1(a)(4)(B)(ii)(I), and therefore the eight-level enhancement under section 2K2.1(4) was properly applied to him. B. Enhancement for ñrearms trafficking Marceau next argues that the district court incorrectly applied the four-level enhancement for firearms trafficking, pursuant to U.S.S.G. § 2K2.1(b)(5). We find no error. As relevant here, the enhancement applies if Marceau “transported, transferred, or otherwise disposed of two or more firearms to another individual ... and ... knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual whose possession or receipt of the firearm would be unlawful; or who intended to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1 cmt. n. 13 (2007). The PSR notes that Marceau admitted giving four of the stolen firearms that he took to Vermont to an individual he would not identify. This easily satisfies the “transport, transfer, or disposal” prong of" }, { "docid": "9832893", "title": "", "text": "BAUER, Circuit Judge. Eric Wagner was charged with eight counts of selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1) and eight counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1). On October 20, 2005, Wagner pleaded guilty to one count of selling a firearm to a convicted felon and one count of distributing marijuana. The remaining counts were dismissed. The district court sentenced Wagner to 30 months imprisonment. In this appeal, Wagner contends that the district court erred when it found that he had transferred a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with an other felony offense and increased his offense level by four levels pursuant to United States Sentencing Guideline § 2K2.1(b)(5). We affirm. I. Background Wagner worked at Wagner Hunting and Fishing Supplies in Freeport, Illinois. Wagner admits that on eight separate occasions he sold firearms to a confidential informant (“Cl”) who he knew had been convicted of a felony. These transactions occurred between November 23, 2004 and April 22, 2005. In addition to selling the Cl nine firearms, Wagner sold marijuana to the Cl and Special Agent (“SA”) Richardson of the Bureau of Alcohol, Tobacco, Firearms & Explosives. Wagner and the government entered into a plea agreement, and the parties agreed that (1) the base offense level was 14 pursuant to U.S.S.G. § 2K2.1(a)(6)(b) because the defendant violated 18 U.S.C. § 922(d); (2) the base offense level increased four levels pursuant to U.S.S.G. § 2K2.1(b)(l)(b) because the offense involved between 8 and 24 firearms; and (3) a three-level reduction was applicable pursuant to U.S.S.G. §§ 3El.l(a) and (b) because the defendant had accepted responsibility and timely expressed his intent to enter a plea of guilty. However, the United States also pursued the application of a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), claiming that Wagner transferred a firearm with knowledge or reason to believe that it would be used or possessed in connection with another felony offense. Wagner requested a total offense level of 15 and reserved the" }, { "docid": "7830957", "title": "", "text": "OPINION ROGERS, Circuit Judge. Defendant Kevin Shields challenges his 108-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At issue is whether his base offense level should have been increased by four points, pursuant to U.S. Sentencing Guidelines § 2K2.1(b)(6), for possessing the weapon in connection with another felony. There was evidence that Shields had simultaneously possessed a firearm and a small, consumption-level amount of marijuana, plus some cocaine residue. The drug possession was a felony rather than a misdemeanor only because of Shields’s prior drug convictions. Although there was sufficient evidence to support the district court’s finding that Shields committed a felony under Tennessee law by possessing the drugs, the Government did not sufficiently demonstrate that Shields’s possession of a firearm facilitated, or had the potential to facilitate, his felony drug possession. Thus, his sentence was procedurally unreasonable. Kevin Shields was arrested on July 15, 2008, after officers found him in possession of a nine-millimeter handgun. On November 18, 2008, a federal grand jury charged Shields with violating 18 U.S.C. § 922(g), and he pleaded guilty to being a felon in possession of a firearm on August 7, 2009. A federal probation officer compiled a presentence investigation report (PSR), assigning Shields a total offense level of twenty five and a criminal history category of VI, and recommending that he be sentenced to between 110 and 120 months’ imprisonment. Shields filed an objection to the PSR’s use of a four-level enhancement to his base offense level for possession of a firearm in connection with another felony offense pursuant to U.S. Sentencing Guidelines § 2K2.1(b)(6), arguing that he did not possess any drugs when he was arrested for being a felon in possession of a firearm. The probation officer rejected this objection, explaining that the enhancement was warranted because officers found marijuana and cocaine near where Shields was sitting right before he was arrested. The district court held a hearing to determine Shields’s sentence on December 14, 2009. The only issue in dispute was the application of the four-level enhancement. The Government" }, { "docid": "5321428", "title": "", "text": "that the district court erred in sentencing him by enhancing the Base Offense Level pursuant to U.S.S.G. § 2K2.1(b)(6). This Guideline provides for a four-level enhancement “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” The Sentencing Guidelines define “another felony offense” as “any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt. n. 14(C). We review de novo the “legal conclusions a district court reaches in order to apply an enhancement for purposes of calculating an advisory guidelines range ... while the factual findings underpinning the enhancement are reviewed for clear error.” United States v. Septon, 557 F.3d 934, 936 (8th Cir.2009). Defendant relies on United States v. Smith, 535 F.3d 883 (8th Cir.2008), a case where the U.S.S.G. § 2K2.1(b)(6) enhancement was held to be not warranted, as support for his position that the nexus was lacking between the handgun found under the mattress and the trafficking of marijuana. The facts in Smith, however, are significantly different from those in the case at hand. In Smith, a search of the defendant’s home led to the discovery of a rifle, shotgun, shotgun barrel and ammunition, as well as a methamphetamine pipe, a baggie containing methamphetamine residue and marijuana. Smith admitted to using the rifle to kill coyotes and Smith’s wife admitted owning the marijuana. At the time the district court judge imposed the enhancement under U.S.S.G. § 2K2.1(b)(6) he stated that it was clear that Smith had been using marijuana and that the use of drugs in the presence of firearms justified the enhancement. 535 F.3d at 884-85. The enhancement was found not warranted in part because there was no evidence of a temporal link between the firearms and a greater amount of methamphetamine than just the residue. 535 F.3d at 886. In United States v. Blankenship, 552 F.3d 703, 704-05 (8th Cir.2009), a panel of this Court explained as follows" }, { "docid": "23572729", "title": "", "text": "to “the pistol” during a presentence inter view, without more, in no way indicates his knowledge of, and access to, the Jennings pistol in Wilson’s purse. We note that the probation office, which actually conducted the interview, seemed to agree: it recommended in its PSR that Houston’s reference to “the pistol” constituted his acceptance of responsibility for the charged offense (ie., being in unlawful possession of the Ruger and Lorein pistols). See generally U.S.S.G. § 3El.l(a) (2001) (allowing for two-level downward adjustment “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense”). Because there is no evidence in the record to support the district court’s finding that Houston had constructive possession of the Jennings pistol in Wilson’s purse, we hold that the district court abused its discretion by enhancing Houston’s offense level by two on the grounds that his offense “involved” a third firearm. C. Enhancement for Possession of Firearms “in connection with” Another Felony Offense The district court also enhanced Houston’s offense level by four on the grounds that he unlawfully possessed firearms in connection with the felony offenses of drug possession and forgery of a government instrument. Section 2K2.1(b)(5) of the sentencing guidelines imposes a four-level enhancement if a defendant “used or possessed any firearm ... in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (2001). The guidelines define “felony offense” for purposes of § 2K2.1 (b)(5) as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought.” U.S.S.G. § 2K2.1, cmt. n.7 (2001). As an initial matter, Houston was not in felonious possession of a controlled substance. The sole evidence cited by the district court was that Houston was arrested in a motel room that contained twelve grams of marijuana. Assuming arguendo that Houston was in constructive possession of the marijuana, the de minimus amount seized was insufficient to support a felony conviction under Texas or federal law. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003) (providing that the possession of less than two ounces (or roughly 62 grams) of" }, { "docid": "23572730", "title": "", "text": "in connection with the felony offenses of drug possession and forgery of a government instrument. Section 2K2.1(b)(5) of the sentencing guidelines imposes a four-level enhancement if a defendant “used or possessed any firearm ... in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (2001). The guidelines define “felony offense” for purposes of § 2K2.1 (b)(5) as “any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought.” U.S.S.G. § 2K2.1, cmt. n.7 (2001). As an initial matter, Houston was not in felonious possession of a controlled substance. The sole evidence cited by the district court was that Houston was arrested in a motel room that contained twelve grams of marijuana. Assuming arguendo that Houston was in constructive possession of the marijuana, the de minimus amount seized was insufficient to support a felony conviction under Texas or federal law. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003) (providing that the possession of less than two ounces (or roughly 62 grams) of marijuana is a Class B Misdemeanor under Texas law); 21 U.S.C. § 844(a) (2000) (designating that the simple possession of marijuana is a misdemeanor under federal law). Although it appears that Houston’s possession of a false Florida identification card and false social security card likely constituted felonious forgery pursuant to Texas Penal Code § 32.21, there is no indication that his firearms were actually possessed “in connection with” the forgery. It is well-established that “a close relationship between the firearm and the other felony offense need not be shown” to enhance a sentence pursuant to § 2K2.1(b)(5). United States v. Armstead, 114 F.3d 504, 511 (5th Cir.1997). This principle was emphasized in United States v. Condren, 18 F.3d 1190, 1198 (5th Cir.1994), where this Court held that a firearm was possessed “in connection with” a felo ny drug offense because the guns and drugs were spatially proximate, and the firearm was readily available to the offender. This Court, however, later narrowed the scope of Condren when it held in United States v. Fadipe that “[t]he" }, { "docid": "997927", "title": "", "text": "guns were in taped boxes that had been brought to his house by Buff, who had allegedly asked Moses to store the weapons there. Moses maintained that the other firearms found in his house, as well as the rifle on the gun rack in his truck, were used only for hunting. The district court, however, did not give full credence to Moses’s testimony. Although the court stated that Moses might have used his rifles solely for hunting, it did not believe that Moses hunted with the .22 caliber Ruger pistol recovered from his house. The court concluded that it was not clearly improbable that Moses had possessed this pistol in connection with his offense, and therefore overruled Moses’s objection to the § 2Dl.l(b)(l) enhancement. This timely appeal followed. II. ANALYSIS A. Firearm enhancement Moses challenges the enhancement of his base offense level pursuant to United States Sentencing Guidelines § 2Dl.l(b)(l). This section provides for a two-point increase in a defendant’s offense level if a firearm is “possessed” during a drug-trafficking crime. An enhancement under § 2Dl.l(b)(l) is proper only if the government establishes, by a preponderance of the evidence, that (1) the defendant possessed a dangerous weapon (2) during the commission of a drug-trafficking offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996). If the government proves both of these elements, the weapon is presumed to have been connected to the defendant’s offense. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). The defendant can rebut this presumption only by showing that it is “clearly improbable that the weapon was connected to the offense.” U.S. Sentencing Guidelines Manual § 2D1.1 comment, n. 3. In the present case, the district court found that Moses possessed several firearms while carrying out the marijuana-manufacturing conspiracy. Moses does not dispute this finding. Indeed, Moses acknowledged at the sentencing hearing that he kept firearms in his house during the period of the conspiracy. He further admitted that he used his house to perform acts in furtherance of the conspiracy; namely, drying and weighing the marijuana once it had been removed from the" }, { "docid": "7830963", "title": "", "text": "the Guidelines range,” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Shields argues that this occurred in his case because the district court mistakenly applied § 2K2.1(b)(6). We review a sentencing court’s factual findings for clear error, and we must give due deference to a district court’s application of the sentencing guidelines to the facts. United States v. Taylor, 648 F.3d 417, 430-31 (6th Cir.2011); United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001). In the district court, “[t]he government bears the burden of establishing the factors supporting [a sentencing] enhancement by a preponderance of the evidence.” United States v. Gibson, 985 F.2d 860, 866 (6th Cir.1993). Section 2K2.1(b)(6) provides for a four-level increase to the base offense level “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense.” Essentially, Shields claims both that he did not commit another felony offense, because he did not possess any drugs, and that even if he did possess the drugs, the Government did not establish a sufficient nexus between the firearm possession and the drug-possession felony. While the first argument lacks merit, the second warrants vacating Shields’s sentence. The district court did not clearly err in finding that Shields committed another felony offense. The commentary to § 2K2.1 states that “ ‘[a]nother felony offense,’ for purposes of subsection (b)(6), means any Federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” App. Notes, cmt. 14(C). Tennessee law forbids knowingly possessing a controlled substance, and makes such possession a felony when the person has two or more prior drug convictions. Tenn. Code Ann. § 39-17-418(a), (e). The district court found that Shields possessed the marijuana and cocaine discovered by officers on the porch where he was sitting, which would constitute a felony because of his prior Tennessee drug convictions. The Government presented enough evidence to support this finding. Officer Jackson found the baggies" }, { "docid": "997931", "title": "", "text": "that he kept the .22 caliber pistol in his bedroom closet. But he never stated where in the house he dried and weighed the marijuana. If he did so in or near the bedroom, the pistol would have been reasonably accessible to Moses as he carried out the conspiracy. United States v. Noble, 246 F.3d 946, 964 (7th Cir.2001) (ruling that where a firearm is located in a closet that is adjacent to a room where drug proceeds are kept, the proximity of the firearm to the proceeds “provides a sufficient nexus to conclude that it was not clearly improbable that the gun was connected with the offense”) (internal quotation marks omitted). Moses therefore failed to offer evidence showing that the location of the pistol was inconsistent with the firearm having a connection to the marijuana conspiracy. The second factor focuses on whether the firearm possessed by a defendant is of a type typically used in drug trafficking. Moses does not contend that a .22 caliber pistol is an uncommon weapon among those who commit drug offenses. Nor could he plausibly do so, because federal appellate courts have consistently upheld § 2Dl.l(b)(l) enhancements based upon the defendant’s possession of a .22 caliber pistol. E.g., United States v. Cruz, No. 98-1970, 2000 WL 377060, at *2-*3 (6th Cir. April 7, 2000) (unpublished table decision) (upholding a § 2Dl.l(b)(l) enhancement where the defendant constructively possessed a .22 caliber pistol while engaged in the distribution of marijuana); United States v. Duke, 935 F.2d 161, 162 (8th Cir.1991) (upholding a § 2Dl.l(b)(l) enhancement where a search of the defendant’s home “uncovered twenty-three grams of a cocaine-like substance, two scales, and a .22 caliber revolver”). This factor is thus of no help to Moses in showing that it is clearly improbable that the pistol was related to the marijuana conspiracy. For the third factor, this court looks to whether the firearm was loaded during the drug offense. Moses testified that he could not specifically recall if the .22 caliber pistol was loaded or unloaded during the marijuana-manufacturing conspiracy. He in fact conceded that “[i]f any" }, { "docid": "5321429", "title": "", "text": "was lacking between the handgun found under the mattress and the trafficking of marijuana. The facts in Smith, however, are significantly different from those in the case at hand. In Smith, a search of the defendant’s home led to the discovery of a rifle, shotgun, shotgun barrel and ammunition, as well as a methamphetamine pipe, a baggie containing methamphetamine residue and marijuana. Smith admitted to using the rifle to kill coyotes and Smith’s wife admitted owning the marijuana. At the time the district court judge imposed the enhancement under U.S.S.G. § 2K2.1(b)(6) he stated that it was clear that Smith had been using marijuana and that the use of drugs in the presence of firearms justified the enhancement. 535 F.3d at 884-85. The enhancement was found not warranted in part because there was no evidence of a temporal link between the firearms and a greater amount of methamphetamine than just the residue. 535 F.3d at 886. In United States v. Blankenship, 552 F.3d 703, 704-05 (8th Cir.2009), a panel of this Court explained as follows the change in the application of the U.S.S.G. § 2K2.1(b)(6) enhancement: Application Note 14(A) to § 2K2.1(b)(6) provides that the “in connection with” adjustment will apply “if the firearm ... facilitated, or had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(A). This application note was added in 2006. Prior to that time, the guidelines were silent on the definition of “in connection with,” and our case law routinely upheld the adjustment when weapons and drugs were in the same vicinity, regardless of whether the underlying drug offense was for possession or trafficking, e.g., United States v. Linson, 276 F.3d 1017, 1018-19 (8th Cir.2002). However, with the addition of Application Note 14, the Sentencing Commission decided to make a distinction between the factual circumstances of when the other felony was a drug trafficking offense, or alternatively, a simple drug possession offense. If the felony is for drug trafficking, Application Note 14(B) mandates application of the adjustment if guns and drugs are in the same location. U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(B)." }, { "docid": "4742646", "title": "", "text": "the night stand next to the bed. Given these circumstances, the government proved by a preponderance of the evidence the required nexus between the firearms and the independent felony — the manufacture of marijuana. Angel’s contention that there was no evidence that he distributed drugs does not alter our conclusion. In Ennenga, we noted that “[although the other felony offense in most § 2K2.1 cases involves drug distribution, this is not an exclusive prerequisite. When one is in possession of a large and valuable stash of drugs, the desire to protect these illicit substances can be compelling.” Ennenga, 263 F.3d at 504. We held in Ennenga that the defendant’s sentence for possession of a firearm by a felon was properly enhanced under § 2K2.1, where five weapons to which he alone had access were found in a locker in the basement hallway, ammunition for a revolver was found in the bedroom, an electric alarm system was in place, and the defendant conceded that the growth of marijuana in his basement apartment was “another felony offense” within the meaning of § 2K2.1. Id. at 503-04. Using the fortress theory, we have affirmed § 2K2.1(b)(6) enhancements in numerous other cases involving circumstances sufficiently similar to the present case. See United States v. Richardson, 510 F.3d 622, 626-27 (6th Cir.2007) (holding that § 2K2.1(b)(6) enhancement was warranted where the defendant was arrested in a marijuana smoke-filled motel room with his girlfriend, and authorities found a stolen gun and marijuana in the defendant’s pocket, along with a large quantity of marijuana and digital scales in the girlfriend’s purse); Hardin, 248 F.3d at 498-501 (affirming district court’s application of the enhancement under the fortress theory where more than fifty grams of cocaine were found in the defendant’s bedroom, along with two ammunition magazines, a bag of marijuana, and a pistol registered to the defendant’s wife and purportedly used for her protection); Heighton, 272 Fed.Appx. at 471-72 (upholding § 2K2.1(b)(6) enhancement under the fortress theory where police officers discovered items used in the production of methamphetamine in the defendant’s residence, two loaded firearms in the kitchen" }, { "docid": "23168760", "title": "", "text": "of that specific case. CONCLUSION The district court concluded that it was “satisfied that the government has satisfied its burden of proof that the gun in this case was possessed ‘in connection’ with the cocaine being held for distribution.” We agree. The decision of the district court to apply the Sentencing Guideline enhancement in § 2K2.1(b)(5) is AFFIRMED. . U.S.S.G. § 2K2.1(b)(5) stales: \"If the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.” . In Covert, the defendant/prior felon also argued that possession of a gun by a person who has committed another felony should not trigger the sentence enhancement because of the Supreme Court decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). This Court found, however, that Bailey did not affect this application of the sentencing guidelines, and upheld the decision of the district court to enhance the defendant’s offense level under § 2K2.1(b)(5): [T]he Supreme Court in Bailey only addressed the meaning of the term “use” in 18 U.S.C. § 924(c), not the term \"possessed” contained in USSG. § 2K2.1(b)(5).... [T]he Supreme Court in Bailey ... stated that the term “possess” used in sentencing guideline sections, such as 2K2.1(b)(5), sweeps more broadly than the word \"use.” Covert, 117 F.3d at 947 (citation omitted). . In one of the few cases in which this Court has overturned a decision by the district court to enhance a defendant's sentence offense level under § 2K2.1(b)(5), the Court held that the drugs were not found in close enough proximity to the illegal firearms. United States v. Gragg, 145 F.3d 1334, 1998 WL 199816, *2 (table) (unpublished decision) (6th Cir. Apr. 14, 1998). In Gragg, two illegal firearms were found in the defendant’s first floor living room, marijuana plants were found in the attic, marijuana seeds, other marijuana growing paraphernalia, and legal firearms were found in a second floor room, a revolver was found in his barn, and marijuana was discovered growing in a field next to the residence. Id. at *1. Gragg pled" }, { "docid": "4742648", "title": "", "text": "area, four other firearms in the house, an electronic scale, and a surveillance camera monitoring the property). Here, there is likewise no doubt that the presence of multiple loaded firearms and ammunition in defendant’s bedroom, in close proximity to the processed marijuana and marijuana plants on the perimeters of the property, was not the result of accident or coincidence, but rather was conveniently made available to facilitate the manufacture of marijuana, protect the product, and embolden Angel. We therefore conclude that the district court did not err in imposing the § 2K2.1(b)(6) enhancement. Moreover, contrary to Angel’s assertion, the district court made sufficient on-the-record findings as to the application of the enhancement. “[Wjhen a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district court considered the defendant’s argument and that the judge explained the basis for rejecting it.” United States v. Jones, 489 F.3d 243, 251 (6th Cir.2007) (citation and internal quotation marks omitted). Our review of the sentencing hearing shows that the district court specifically addressed and overruled Angel’s objection to the § 2K2.1(b)(6) enhancement. Thus, Angel’s argument is without merit. Because the district court correctly calculated the Guidelines range and Angel alleges no further error, we find his sentence to be proeedurally reasonable. United States v. Angwin, 560 F.3d 549, 553 (6th Cir.2009) (citing Gall, 128 S.Ct. at 597). III. For the foregoing reasons, Angel’s sentence is affirmed. . Because Angel lived in his mother's home, the agent confined the search to the upstairs bedroom shared by Angel and his wife. . \" 'Another felony offense,’ for purposes of subsection (b)(6), means any Federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1, cmt. n. 14(C) (2007). The manufacture or cultivation of marijuana is a felony offense under both federal and Kentucky law. See 21 U.S.C. § 841(a)(1) and (b)(l)(D)(l) (less than 50 kg of marijuana); Ky.Rev.Stat. Ann. § 218A.1423(2)" } ]

[ { "docid": "23106637", "title": "", "text": "analogous to 'recipe;' [and] control flow which is the sequence of events.” Gates Rubber, 798 F.Supp. at 1514-15. . In fact, common errors are not always probative of copying. For example, on the record before us, the testimony of the expert Dr. Dorn argued that the errors resulted from different sources in the programs. . Except as stated above, we find no error in the remaining portions of the district court’s analysis of Gates' copyright claim. . The Colorado Uniform Trade Secrets Act provides for damages and injunctive relief for misappropriation of trade secrets. Colo.Rev.Stat. 7-74-103 and 7-74-104. Misappropriation is defined as: (a) Acquisition of a trade secret of another by a person who knows or who has reason to know that the trade secret was acquired by improper means; or (b) Disclosure or use of a trade secret of another without express or implied consent by a person who: (I)Used improper means to acquire knowledge of the trade secret; or (II) At the time of the disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (A) Derived from or through a person who had utilized improper means to acquire it; (B) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (III) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Colo.Rev.Stat. 7-74-102(2). . In its complaint, Gates alleges that (i) Bando officials knew that they possessed trade secrets belonging to Gates and that the trade secrets were used in the development of their computer programs, (ii) that the trade secrets were used in violation of Gates' rights and as a means of unfair competition, (iii) that the trade secrets were obtained in violation of confidentiality agreements, and (iv) the use of the trade secrets constituted a" } ]

[ { "docid": "20396345", "title": "", "text": "was a trade secret; and (II) knowledge of the trade secret had been acquired by accident or mistake; (6) the term “improper means”— (A) includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means; and (B) does not include reverse engineering, independent derivation, or any other lawful means of acquisition[.] Id. § 1839(5)—(6) (alteration added). The FUTSA similarly defines misappropriation broadly, as: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (b) Disclosure or use of a trade secret of another without express or implied consent by a person who: 1. Used improper means to acquire knowledge of the trade secret; or 2. At the time of disclosure or use, knew or had reason to know that her or his knowledge of the trade secret was: a. Derived from or through a person who had utilized improper means to acquire it; b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or c. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or 3. Before a material change of her or his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Fla. Stat. § 688.002(2). B. Whether M.C. Dean plausibly alleges steps to protect its trade secret The Motion, in large part, takes issue* with what Plaintiff does not allege: “[t]he Complaint omits a key party, key documents and glosses over a key chain1 of events.” (Mot. 1 (alteration added)). According to Defendants, Plaintiff fails to allege any efforts it took to protect the “so-called trade secret information” when the information was disseminated to the third party, Clark. (Id. 2). Plaintiff does not allege Clark signed an agreement to keep the information confidential. (See id.). Plaintiff does not allege Clark breached" }, { "docid": "185273", "title": "", "text": "(7th Cir.1994). We will dismiss a claim 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, 2 L.Ed.2d 80 (1957). Fed.R.Civ.P. 8(a)(2) only requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Generally, “mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss.” Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). I. Trade Secrets (Counts 1 and 3) To state a claim for misappropriation of a trade secret under the Illinois Trade Secrets Act (ITSA), 765 ILCS 1065/1 et seq., the complaint must allege that information was (1) a trade secret, (2) misappropriated and (3) used by defendant. Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 1265-66 (7th Cir.1992). Defendants argue that the complaint does not adequately identify which trade secrets were allegedly misappropriated, and that it does not plead they actually used any AutoMed secrets. As Judge Shadur observed at his April 23, 2001 hearing, the original complaint was by no means a model of specificity. It alleged generally that AutoMed’s software, design plans and research and development, related to OptiFill, Next Generation and the MegaPharmacy Project, were trade secrets. “It is not enough to point to broad areas of technology and assert that something there must have been secret and misappropriated. The plaintiff must show concrete secrets.” Composite Marine, 962 F.2d at 1265. The amended complaint is not much better, but it does meet minimal Fed.R.Civ.P. 8(a) requirements. “Courts are in general agreement that trade secrets need not be disclosed in detail in a complaint alleging misappropriation for the simple reason that such a requirement would result in public disclosure of the purported trade secrets.” Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 755 F.Supp. 635, 636 (D.Del.1991). Although it repeats the general allegations, it also specifies Staffing Simulation software and the source code for PPS software as trade secrets (cplt.¶¶ 42-43)." }, { "docid": "9293706", "title": "", "text": "the suit, given the applicable substantive law. A dispute about a material fact is \"genuine\" if the evidence presented \"is such that a reasonable jury could return a verdict for the nonmoving party.\" In evaluating a summary judgment motion, a court \"must view the facts in the light most favorable to the non-moving party,\" and make every reasonable inference in that party's favor. Further, a court may not weigh the evidence or make credibility determinations. Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record. \"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.\" This requirement upholds the \"underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.\" Therefore, if, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate. III. DISCUSSION A. THE MISAPPROPRIATION OF TRADE SECRETS CLAIMS ARE TIME BARRED Heraeus raises a misappropriation of trade secrets claim and a conspiracy to misappropriate trade secrets claim against Esschem. A party misappropriates a trade secret when it \"acquires knowledge of another's trade secret in circumstances giving rise to a duty to maintain its confidentiality and then discloses or uses that trade secret without the other's consent.\" Misappropriation of trade secrets claims brought under the Pennsylvania Uniform Trade Secrets Act (\"PUTSA\") are governed by a three-year statute of limitations. The three-year statute of limitations begins to run when \"the misappropriation was discovered or by the exercise of reasonable diligence should have been discovered.\" The three-year statute of limitations in PUTSA incorporates the \"discovery rule,\" which is an exception to the general rule that a claim accrues at the time the alleged wrongful act was committed. In other words, the \"discovery rule\" dictates that the statute of limitations will not begin to run until the plaintiff knew, or should reasonably have known, that he had been injured and that his" }, { "docid": "20721569", "title": "", "text": "that defendants were motivated by lawful independent purposes. Plaintiffs need not disprove all possible lawful explanations at this stage. Thus, plaintiffs have adequately stated a claim for conspiracy to eliminate competition by unfair means. Therefore, defendants’ motions to dismiss are DENIED as to plaintiffs’ claims four and five. (tí THEFT OF TRADE SECRETS: CLAIM 6 In plaintiffs’ sixth claim for relief plaintiffs contend that defendants misappropriated their trade secrets, including login information for profiles on MySpace, lists of MySpace “friends,” confidential lists of personal cell phone numbers and email addresses for DJs, agents, and promoters, and customer lists. Beatport moves to dismiss this claim because plaintiffs have (1) failed to allege sufficient allegations to demonstrate that plaintiffs’ lists are trade secrets, specifically, that plaintiffs’ MySpace profile and “friends” list do not qualify as trade secrets; and (2) plaintiffs do not allege that the misappropriation was known by Beatport. “Under Colorado law, to prove theft or misappropriation of a trade secret, plaintiff must show: (i) that he or she possessed a valid trade secret, (ii) that the trade secret was disclosed or used without consent, and, (iii) that the defendant knew, or should have known, that the trade secret was acquired by improper means.” Gates Rubber Co. v. Bando Chemical Indus. Ltd., 9 F.3d 823, 847 (10th Cir.1993). Trade Secrets A “trade secret” is the “whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value.” C.R.S. § 7-74-102(4). Additionally, the owner of the trade secret must have “taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.” Ibid. Apart from the MySpace profiles and “friends,” the other asserted trade secrets allegedly stolen by defendants qualify as trade secrets under Colorado law because they are “listings of names, addresses, or telephone numbers, or other information relating to any business ... which is secret" }, { "docid": "8435995", "title": "", "text": "likelihood of success on its claims that Erlich infringed their copyrights on all of the Exhibit A and B works, except items 4 and 9 of Exhibit A and item 9 of Exhibit B. C. Likelihood of Success on Trade Secret Claim In the third cause of action, plaintiff RTC alleges that Erlich misappropriated its trade secrets. California has adopted a version of the Uniform Trade Secret Act (“UTSA”), Cal.Civ.Code § 3426.1 et seq. The UTSA defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or 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. Cal.Civ.Code § 3426.1(d). The UTSA further defines “misappropriation” of a trade secret as (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Id. § 3426.1(b). To establish its trade secret claim, RTC must show, inter alia, that the Advanced Technology works (1) have" }, { "docid": "16490865", "title": "", "text": "suppliers, identities of individual contacts at business entities which are customers or prospective customers or suppliers, preferences, businesses or habits), business relationships and other information owned, developed or possessed by Employer- or its subsidiaries, divisions or affiliates, except as required in the course of performing duties hereunder; provided however, that Protected Information shall not include information that shall become generally known to the public or the trade without violation of this Agreement. See Id. at paragraphs 16-17. Furthermore, Plaintiffs complaint “alleges that [Defendant] breached the non-disclosure agreement ... [when he] disclosed the contents of the confidential information to be presented to [ICS] ... [and when he] utilized the highly confidential and trade secret information of [Plaintiff] and its cus tomers in marketing Avant IT’s services to [Plaintiffs] customers.” See Docket No. 1 at paragraphs 33, and 45-47. Plaintiffs Complaint sufficiently states a cause of action for breach of contract. d. Misappropriation of Trade Secrets Defendant alleges that Plaintiff failed to sufficiently plead a claim for misappropriation of trade secrets and, therefore, the claim should be dismissed. Specifically, Defendant argues that Plaintiffs “complaint fails to state any facts that would lead to the conclusion that [Defendant] possessed trade secrets as opposed to general business knowledge gained from his experience, or that [Defendant] has used any alleged trade secrets in his business dealings since leaving [Plaintiff].” See Docket No. 10. “To succeed on a claim for the misappropriation of trade secrets under New York law, a party must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 117 (2d Cir.2009) (quoting N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999)). “A trade secret is any formula, pattern, device or compilation of information which is used in one’s business, and which gives the owner an opportunity to obtain an advantage over competitors who do not know or use it.” Id. (internal quotation marks and" }, { "docid": "191102", "title": "", "text": "claim for misappropriation of trade secrets fails to state a claim for relief. In a claim of misappropriation of a trade secret, a plaintiff must show that: “(1) [she] possessed a trade secret, and (2) defendant is using that trade secret in breach of an agreement, confidence, or duty, or as a result of discovery by improper means.” Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 173 (2d Cir.1990). Under New York law, a trade secret means, [A]ny device ... which is used in one’s business, and which gives [the owner] an opportunity to obtain an advantage over competitors who do not know or use it.... [Six factors are to be considered in determining whether a trade secret exists:] (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. North Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 44 (2d Cir.1999) (internal quotation marks and citation omitted). The amended complaint alleges that the plaintiffs possessed the following trade secrets: (a) customer contacts, lists and leads; (b) supplier contacts, lists and leads; (c) method of inventory acquisition; (d) method of dismantling and testing computer equipment and computer parts inventory, including their training of technical computer staff in connection therewith; (e) method of pricing computer parts inventory, inventory management and movement; and (f) method of operating BBP’s business. It is also alleged that all of the defendants used these trade secrets to compete against BBP in the United States computer parts market which was in violation of the Non-Competition Agreement contained in the European Joint Venture Agreement. These allegations sufficiently plead a claim of misappropriation of trade secrets. Accordingly, the" }, { "docid": "3126243", "title": "", "text": "their agreements with those customers; the identity of their suppliers and the terms of their agreements with those suppliers and the abilities, skills and compensation of GPS’s and GMS’s employees (the “Trade Secrets”). 15. The Trade Secrets were not, and are not, generally known to the public and were the subject of reasonable efforts to maintain their confidentiality. Accordingly, the Trade Secrets consti tuted trade secret information belonging to GPS under C.R.S. § 7-74-101, et seq. 16. Weakland has misappropriated, improperly used, misused and improperly disclosed the Trade Secrets belonging to GPS and GMS. 17. Weakland has disclosed some and/or all of the Trade Secrets to SEMINOLE. 18. As an officer of GPS, Weakland owed GPS a fiduciary duty not to take any action that would harm GPS and/or its owner, GMS. Despite this obligation, Weakland has misappropriated, misused and improperly disclosed the Trade Secrets belonging to GPS and/or its owner, GMS, to SEMINOLE and others. Amended Complaint at ¶ 14-18. Based on these allegations, the misappropriation claim against Weakland relates to the Employment Agreement and relates to the relationship between the parties created by the Employment Agreement. Weakland would not have had access to the alleged trade secrets and confidential information but for the employment relationship with GPS. See Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1517-18 (10th Cir.1995)(compelling arbitration of claims based upon alleged misuse of confidential and proprietary information obtained during the contractual relationship). Additionally, Plaintiffs’ breach ■ of the employment agreement claim includes an allegation that Weakland misappropriated trade secrets. The employment contract itself contains a section prohibiting the disclosure of confidential information. See Motion to Compel, Exhibit 1, Contract at ¶ 6.1. The agreement states that the covenant not to disclose survives the contract’s termination and lists what Plaintiffs are seeking to protect as alleged trade secrets. See id. Under these circumstances, the misappropriation of trade secrets claim against Weakland is subject to arbitration. C. Motion for Preliminary Injunction Finally, Plaintiffs’ Motion for Preliminary Injunction seeks an order enjoining Defendants Weakland and Seminole from engaging in the misuse and disclosure of Plaintiffs’ trade" }, { "docid": "8870000", "title": "", "text": "for the Court to determine that RFMAS has the opportunity to submit additional evidence of actual confusion in the form of consumer survey evidence, and the So Defendants’ motion for summary judgment with respect to whether RFMAS may seek damages under its claim for unfair competition must therefore be denied. G. MISAPPROPRIATION OF TRADE SECRETS The Richemont Defendants assert that they are entitled to summary judgement on RFMAS’s claim that the Richemont Defendants misappropriated trade secrets. “To succeed on a claim for misappropriation of trade secrets under New York law, a party must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” North Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999) (citing Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1176 (2d Cir.1993)). “A trade secret is any formula, pattern, device or compilation of information which is used in one’s business, and which gives [the owner] an opportunity to obtain an advantage over competitors who do not know or use it.” Id. at 44 (finding that a client list indicating preferences can constitute a protectible trade secret) (internal quotations and citations omitted). The Richemont Defendants argue that they are entitled to summary judgment on this claim because RFMAS failed to state with specificity which trade secrets it is alleging the Defendants misappropriated. RFMAS argues that there is no requirement that they allege the trade secrets with specificity in their complaint, and that they have given the Defendants notice of which specific trade secrets they allege were misappropriated. The Court finds that RFMAS has sufficiently indicated the trade secrets the Richemont Defendants have allegedly misappropriated, and the Court agrees that there is no requirement that a plaintiff specify the particular trade secrets at issue in its complaint. See Medtech Prods., Inc. v. Ranir, LLC, 596 F.Supp.2d 778, 788-89 (S.D.N.Y.2008) (citing cases denying motions to dismiss where trade secrets were not alleged with particularity). RFMAS alleges that the Richemont Defendants misappropriated" }, { "docid": "20861464", "title": "", "text": "(ii) At the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was: (I) Derived from or through a person who had utilized improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (iii) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. O.C.G.A. § 10-1-761(2). 1. Hall Hall moves to dismiss Plaintiffs misappropriation claim, arguing that Hall did not acquire the information by improper means or under circumstances giving rise to a duty to maintain the information’s secrecy. The Court agrees with Hall that he did not acquire the information by improper means because he was authorized by Plaintiff to access Agilysys’ trade secrets. See supra. However, as noted above, the Court has found at this stage that the Non-Disclósure Agreement was enforceable, contrary to Hall’s arguments. And a non-disclosure agreement can be the basis for imposing a duty not to disclose a trade secret. See Penalty Kick Mgmt. Ltd., 318 F.3d at 1292. Therefore, Plaintiff maintains that Hall misappropriated the trade secrets because the Non-Disclosure Agreement provided a duty to maintain the secrecy of the information. Upon review of the Amended Complaint, Plaintiff has alleged that Hall used and disclosed Agily-sys’ trade secrets, and that at the time, Hall knew he had acquired the trade secrets improperly, in violation of the NonDisclosure Agreement. Therefore, the Court finds that Plaintiffs GTSA claim against Hall may proceed. 2. Solutions II Additionally, Plaintiff maintains that Solutions II is liable for misappropriation of trade secrets. Pursuant to O.C.G.A. § 10-1-761(2), to show that Solutions II misappropriated Agilysys’ trade secrets, Plaintiff must demonstrate that Solutions II disclosed or used Agilysys’ trade secrets and at the time of disclosure or use, Solutions II knew or had reason" }, { "docid": "20123792", "title": "", "text": "law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). A. Standard of Review: Rule 9(b) Fraud must be pleaded with particularity. Fed.R.Civ.Proc. 9(b). The time, place, and manner of each fraudulent act must be alleged so that Defendant can prepare an adequate answer. Bosse v. Cromwell Collier and MacMillan, 565 F.2d 602, 611 (9th Cir.1977). See also Lancaster Community Hospital v. Antelope Valley Hospital Dist., 940 F.2d 397, 405 (9th Cir.1991); Semegen v. Weidner, 780 F.2d 727, 735 (9th Cir.1985); Gottreich v. San Francisco Investment Corp., 552 F.2d 866 (9th Cir.1977). 1. Common Law and Constructive Fraud Although Plaintiffs reference various statements Defendants made to them, Plaintiffs do not specifically refer to the representations upon which they claim to have relied when they refused to market their skinless chicken product to Pizza Inn. In light of the more stringent pleading requirements for fraud, Plaintiffs must restate their causes of action for fraud more particularly by stating the time, place, and manner of the alleged fraudulent acts. Therefore, Plaintiffs will be granted leave to file an Amended Complaint to plead the claims of fraud with sufficient particularity- B. Standard of Review: Rule 12(b)(6) A defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed.R.Civ.Proc. 12(b)(6). A complaint may only be dismissed if there is no set of facts within the complaint’s framework that would entitle the complainant to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). 1. Misappropriation of Trade Secrets The elements for pleading a misappropriation of a trade secret can be derived from the Uniform Trade Secrets Act, which Nevada has adopted. See Nev.Rev.Stat. ch. 600A, et seq. In the Act, misappropriation means: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; (b) Disclosure or use of a trade secret of another without express or implied consent by a person who: (1) Used improper means to" }, { "docid": "20369069", "title": "", "text": "of this information (Id. ¶¶ 46, 47). It also alleges that Aghjayan, with the assistance of Mrs. Aghjayan, was involved in a scheme to collect and remove Ritani’s trade secret and confidential files and to use such files for the creation and benefit of the Defendant Companies so that they could develop, manufacture, produce and market competing products and services, to the detriment of Ritani. (Id. at ¶¶ 46-51, 201-204). In addition, the precise details as to the specific information that Aghjayan misappropriated and what exactly he did with this information is peculiarly within the possession and control of Aghjayan and will be uncovered during the discovery process. The allegations in the Amended Complaint make the inference that Aghjayan, along with Mrs. Aghjayan, misappropriated Plaintiffs trade secrets more than plausible. However, aside from Aghjayan and Mrs. Aghjayan, the Amended Complaint fails to set forth any allegations as to the use of the alleged trade secrets by the remaining corporate defendants. Individual defendants, corporate or otherwise, are entitled to notice of the misappropriations for which Ritani seeks to hold them liable. The allegation of control by Aghjayan is insufficient. See generally Onwuka, 2012 WL 34090, at *4-5; Dove, 56 F.Supp.2d at 335; In re Cross Media Marketing Corp. Secs. Litig., 314 F.Supp.2d 256, 264-66 (S.D.N.Y.2004). As set forth above, the wrongdoing of each defendant must be delineated and therefore the motion to dismiss the misappropriation of the trade secret claim is granted to all Defendants, with the exception of Aghjayan and Mrs. Aghjayan. E) The Tortious Interference Claim Is Dismissed-Count X In Count X, the Plaintiff has alleged that the Defendants’ conduct amounts to tortuous interference with a business relationship. Defendant seeks dismissal of this cause of action because Defendants’ conduct, as alleged by Plaintiffs, is impermissibly vague to make out the elements of the tort. To state a claim for tortious interference with business relationships under New York law a plaintiff must allege: “(1) the plaintiff had business relations with a third party; (2) the defendant interfered with those business relations; (3) the defendant acted for a wrongful purpose or" }, { "docid": "20861465", "title": "", "text": "as noted above, the Court has found at this stage that the Non-Disclósure Agreement was enforceable, contrary to Hall’s arguments. And a non-disclosure agreement can be the basis for imposing a duty not to disclose a trade secret. See Penalty Kick Mgmt. Ltd., 318 F.3d at 1292. Therefore, Plaintiff maintains that Hall misappropriated the trade secrets because the Non-Disclosure Agreement provided a duty to maintain the secrecy of the information. Upon review of the Amended Complaint, Plaintiff has alleged that Hall used and disclosed Agily-sys’ trade secrets, and that at the time, Hall knew he had acquired the trade secrets improperly, in violation of the NonDisclosure Agreement. Therefore, the Court finds that Plaintiffs GTSA claim against Hall may proceed. 2. Solutions II Additionally, Plaintiff maintains that Solutions II is liable for misappropriation of trade secrets. Pursuant to O.C.G.A. § 10-1-761(2), to show that Solutions II misappropriated Agilysys’ trade secrets, Plaintiff must demonstrate that Solutions II disclosed or used Agilysys’ trade secrets and at the time of disclosure or use, Solutions II knew or had reason to know that the knowledge of the trade secrets was acquired by Hall under circumstances giving rise to a duty to maintain its secrecy or limit its use, or the knowledge of the trade secrets was derived from or through Hall, who owed a duty to Agilysys. Plaintiff asserts in the Amended Complaint that Hall and Solutions II disclosed and utilized Agilysys’ trade secrets. Am. Comp, at ¶ 123. Plaintiff asserts further that Solutions II knew the disclosures and utilization were illegal and violated Agily-sys’ Non-Disclosure Agreement. Id. at ¶ 125. In addition, Plaintiff alleges that Solutions II was aware of Hall’s duties under the Non-Disclosure Agreement at the time it hired Hall. H. at ¶ 79. Plaintiff contends that Solutions II hired Hall with full knowledge of Hall’s possession of, and access to, Plaintiffs trade secret information. Id. at ¶ 210. Plaintiff has not alleged facts in the Amended Complaint to support its allegations that Solutions II knew or had reason to know that the information was protected under a Non-Disclosure Agreement, giving rise" }, { "docid": "20721568", "title": "", "text": "of reason analysis. See Midwest Underground Storage v. Porter, 717 F.2d 493, 497 (10th Cir.1983) (holding that “conspiracies of the type alleged herein should be assessed under the rule of reason.”). It is unnecessary for plaintiffs to meet the per se pleading standards. Beatport also argues that “the complaint contains no facts to suggest that any of the impacts about which plaintiffs complain cannot be explained by lawful behavior.” [# 15 at 10]. Defendants argue that Twombly requires that plaintiffs demonstrate that the alleged antitrust violation cannot be explained by lawful free market behavior. Instead, per defendants’ argument, Beatport’s, Beta’s, and Mr. Roulier’s actions can “just as easily be explained by the fact that in 2008 Beta was a new club that generated intense interest in the marketplace.” Id. at 10-11. Twombly holds that “proof of a § 1 conspiracy must include evidence tending to exclude the possibility of independent action.” 550 U.S. at 554, 127 S.Ct. 1955. If taken as true, the above discussed facts support viable arguments that tend to exclude the possibility that defendants were motivated by lawful independent purposes. Plaintiffs need not disprove all possible lawful explanations at this stage. Thus, plaintiffs have adequately stated a claim for conspiracy to eliminate competition by unfair means. Therefore, defendants’ motions to dismiss are DENIED as to plaintiffs’ claims four and five. (tí THEFT OF TRADE SECRETS: CLAIM 6 In plaintiffs’ sixth claim for relief plaintiffs contend that defendants misappropriated their trade secrets, including login information for profiles on MySpace, lists of MySpace “friends,” confidential lists of personal cell phone numbers and email addresses for DJs, agents, and promoters, and customer lists. Beatport moves to dismiss this claim because plaintiffs have (1) failed to allege sufficient allegations to demonstrate that plaintiffs’ lists are trade secrets, specifically, that plaintiffs’ MySpace profile and “friends” list do not qualify as trade secrets; and (2) plaintiffs do not allege that the misappropriation was known by Beatport. “Under Colorado law, to prove theft or misappropriation of a trade secret, plaintiff must show: (i) that he or she possessed a valid trade secret, (ii) that" }, { "docid": "20123794", "title": "", "text": "acquire knowledge of the trade secret; (2) At the time of disclosure knew or had reason to know that the knowledge of the trade secret was: (I) Derived from or through a person who had used improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to a person seeking relief to maintain its secrecy or limit its use____ Nev.Rev.Stat. ch. 600A.030. Although Nevada courts have not done so, Oregon has addressed the requirements for misappropriation of a trade secret under the Uniform Trade Secrets Act. This Act has uniform application and construction. Nev.Rev.Stat. ch. 600A.020. As stated in Holland Dev. v. Manufacturers Consultants, the requirements for misappropriation of a trade secret include: ... (1) a valuable commercial design; (2) a confidential relationship between the party asserting trade secret protection and the party who disclosed the information; and (3) the key features of the design that were the creative product of the party asserting protection____ 81 Or.App. 57, 62, 724 P.2d 844, 847 (1986); Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 972 (9th Cir.1991). Based on the above, it is clear that Plaintiffs have not properly pleaded this cause of action. In their Complaint, Plaintiffs do not state that KFC is using their trade secret without Plaintiffs’ consent. Plaintiffs also do not demonstrate that Defendant allegedly uses the same method as Plaintiffs to prepare skinless fried chicken. Plaintiffs merely assert that much to their surprise, KFC began to market its own skinless chicken product in early 1991. Furthermore, Plaintiffs have failed to show that they had a confidential relationship with Defendant, other than the agreement made with Wang in 1984. Defendant’s motion to dismiss with respect to the misappropriation of trade secrets will therefore be granted without prejudice to enable Plaintiffs to file an Amended Complaint to properly plead a claim under the Uniform Trade Secrets Act. 2. Breach of Contract Plaintiffs allege, “Defendant agreed not to use the trade secrets of Plaintiff for" }, { "docid": "3685809", "title": "", "text": "CDS: breach of contract, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts VII, XII, XIII, and XIV. Kaplan, Duane, and CDS move the Court to dismiss all of the claims against them, arguing that the Amended Complaint fails to state a claim as to each cause of action against them. Medtech alleges the following claims against DenTek: patent infringement, violation of the Lanham Act, copyright infringement, unfair competition, unjust enrichment, violation of section 349(H) of New York Act for Consumer Protection From Deceptive Acts and Practices, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts I, II, III, IV, V, VI, X, XI, XII. DenTek moves the Court to dismiss Med-tech’s claims of unfair competition, unjust enrichment, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. 1. Medtech’s Trade Secret Misappropriation Claims Against Kaplan, Duane, CDS, and DenTek In order to state a claim for trade secret misappropriation under New York law, a plaintiff must establish the following elements: “(1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999). “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives [the owner] the opportunity to obtain an advantage over competitors who do not know or use it.” Restatement of Torts § 757, comment b (1930) (adopted as the definition of a trade secret by the Second Circuit in Softel, Inc. v. Dragon Med. & Scientific Communications, Inc., 118 F.3d 955, 968 (2d Cir.1997)). The following factors may be used to determine whether a particular piece of information is a trade secret: (1) the extent to which the information is known outside of the business; (2) the extent to which it is" }, { "docid": "10361485", "title": "", "text": "“disseminated sufficiently to the relevant purchasing public to constitute 'advertising' or 'promotion' within that industry.” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir.1999). Given the court’s determination that plaintiff failed to sufficiently plead the cause of action, the court does not reach the issue of whether plaintiff satisfied this particular element of the claim. . The UTSA defines the term \"trade secret\" as: information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or 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. Cal. Civ.Code § 3426.1(d). . Under section 3426.1(b) of the UTSA, \"misappropriation” means: (1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of another without express or implied consent by a person who: (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) derived from or through a person who had utilized improper means to acquire it; (ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. . In determining what constitutes \"use” and “disclosure” of trade secrets in the context of misappropriation, courts have held that mere possession of trade secrets is not sufficient to satisfy this" }, { "docid": "23106620", "title": "", "text": "not preempt the state action. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2nd Cir.1992). Under Colorado law, to prove misappropriation of a trade secret, a plaintiff must show: (i) that he or she possessed a valid trade secret, (ii) that the trade secret was disclosed or used without consent, and (iii) that the defendant knew, or should have known, that the trade secret was acquired by improper means. The breach of a duty of trust or confidence “is the gravamen of such trade secret claims and supplies the ‘extra element’ that qualitatively distinguishes such trade secret causes of action from claims for copyright infringement that are based solely on copying.” Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, 717 (2nd Cir.1992); Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 660 (4th Cir.1993); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1090 n. 13 (9th Cir.1989); Restatement (First) of Torts § 757 cmt. a (1939). Because Gates’ claim for trade secret misappropriation under the Colorado Uniform Trade Secrets Act requires proof of a breach of trust or confidence — proof that is not required under the Copyright Act — Gates’ state law claims are not preempted by federal law. The appellants suggest that this court’s opinion in Ehat v. Tanner, 780 F.2d 876 (10th Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 86, 93 L.Ed.2d 39 (1986), compels a different result. We disagree. The cause of action in Ehat sought damages for the reproduction and distribution of copyrighted notes from individuals who had no part in the misappropriation of the materials. Moreover, it was not necessary under the common law claims asserted in Ehat that the plaintiff show a breach of trust or confidence. B. The Economic Value of the Constants The appellants claim that the district court erred when it failed to set forth the elements of a trade secret claim and make specific findings as to each element. Further, the appellants argue that if the court had engaged in this analysis the constants would not have been found to be trade" }, { "docid": "3126242", "title": "", "text": "Inc. v. Promise Keepers, 53 F.Supp.2d 1101, 1108-09 (D.Colo.1999). Similarly, the revocation of an arbitration provision requires the express or clear intent of the parties to do so. See Riley, 157 F.3d at 781-82. Here, there is no indication that the parties intended to revoke the arbitration clause. Accordingly, Defendant Weakland’s motion to compel arbitration is granted as to the inducing breach of contract claim. B. Misappropriation of Trade Secrets Plaintiffs’ fourth claim against Defendants alleges that they misappropriated trade secrets. Plaintiffs argue that Defendant Weakland’s post-employment (and post-contract repudiation) misappropriation of trade secrets does not arise under or relate to the employment agreement and, therefore, the claim is beyond the scope of the arbitration provision. Again, I look to the factual allegations. The Amended Complaint states: 14. While employed as an officer of GPS, Weakland was entrusted with confidential information belonging to GPS and GMS, including the plans of GPS and GMS and their operations, including their petroleum trading business; their trading strategies in their operations; the identity of their customers and terms of their agreements with those customers; the identity of their suppliers and the terms of their agreements with those suppliers and the abilities, skills and compensation of GPS’s and GMS’s employees (the “Trade Secrets”). 15. The Trade Secrets were not, and are not, generally known to the public and were the subject of reasonable efforts to maintain their confidentiality. Accordingly, the Trade Secrets consti tuted trade secret information belonging to GPS under C.R.S. § 7-74-101, et seq. 16. Weakland has misappropriated, improperly used, misused and improperly disclosed the Trade Secrets belonging to GPS and GMS. 17. Weakland has disclosed some and/or all of the Trade Secrets to SEMINOLE. 18. As an officer of GPS, Weakland owed GPS a fiduciary duty not to take any action that would harm GPS and/or its owner, GMS. Despite this obligation, Weakland has misappropriated, misused and improperly disclosed the Trade Secrets belonging to GPS and/or its owner, GMS, to SEMINOLE and others. Amended Complaint at ¶ 14-18. Based on these allegations, the misappropriation claim against Weakland relates to the Employment Agreement" }, { "docid": "20123793", "title": "", "text": "will be granted leave to file an Amended Complaint to plead the claims of fraud with sufficient particularity- B. Standard of Review: Rule 12(b)(6) A defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed.R.Civ.Proc. 12(b)(6). A complaint may only be dismissed if there is no set of facts within the complaint’s framework that would entitle the complainant to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). 1. Misappropriation of Trade Secrets The elements for pleading a misappropriation of a trade secret can be derived from the Uniform Trade Secrets Act, which Nevada has adopted. See Nev.Rev.Stat. ch. 600A, et seq. In the Act, misappropriation means: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; (b) Disclosure or use of a trade secret of another without express or implied consent by a person who: (1) Used improper means to acquire knowledge of the trade secret; (2) At the time of disclosure knew or had reason to know that the knowledge of the trade secret was: (I) Derived from or through a person who had used improper means to acquire it; (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) Derived from or through a person who owed a duty to a person seeking relief to maintain its secrecy or limit its use____ Nev.Rev.Stat. ch. 600A.030. Although Nevada courts have not done so, Oregon has addressed the requirements for misappropriation of a trade secret under the Uniform Trade Secrets Act. This Act has uniform application and construction. Nev.Rev.Stat. ch. 600A.020. As stated in Holland Dev. v. Manufacturers Consultants, the requirements for misappropriation of a trade secret include: ... (1) a valuable commercial design; (2) a confidential relationship between the party asserting trade secret protection and the party who disclosed the information; and (3) the key features of the design that were the creative product of" } ]

[ { "docid": "1858352", "title": "", "text": "aff’d 435 F.2d 470 (7th Cir. 1970), cert. denied 402 U.S. 973, 91 S.Ct. 1662, 29 L.Ed.2d 138 (1971); Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (9th Cir. 1971). Nothing in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 decided this week, appears to modify this px’ineiple. Consequently, the reduction in revenue does not have same inevitability as did the tax on large newspapers in Grosjean. The publisher may decline' all political advertising if it is not sufficiently px*ofitable or for any other reason however capricious. One must assume the cheapest rate is not an unprofitable rate. Consequently, the question boils down to this: whether a statute aimed exclusively at publishers and broadcasters is unconstitutional on its face when it compels the charging of minimal advertising rates for political candidates, thereby resulting in some, comparatively slight, loss of x*evenue. As observed by the Supx'eme Coux-t, generally more than two-thirds of a newspaper’s total revenues flow from the sale of advertising space and “ [advertising is the economic mainstay of the newspaper business.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 604, 73 S.Ct. 872, 878, 97 L.Ed. 1277 (1953). The Supreme Court has also observed: “The power of a private owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers —and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117; 93 S.Ct. 2080, 2094, 36 L.Ed.2d 772 (1973), quoted approvingly in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831 at 2838, 41 L.Ed.2d 730 (1974). Any ambiguity about these tracks on the constitutional trail was dispelled by Miami Herald Publishing Co. v. Tornillo, supra, in which the court struck down a Florida statute compelling the newspaper to print, free of cost, any reply a political candidate wants to make if the newspaper assqils his character or official record. The court held: “Governmental restraint" } ]

[ { "docid": "11492512", "title": "", "text": "most highly prized freedoms. In light of the compelling need for expedition of this matter to facilitate the earliest Supreme Court review, this is not the occasion for an exhaustive exposition, and I shall be content merely to highlight the difficulties I perceive in this comprehensive attempt to reform and purify our electoral process. I. Standards and Interests To approach the question of the statute’s constitutionality properly, the initial step must be to identify the rights plaintiffs seek to protect in attacking the statute and the interests the Government seeks to effectuate by its enactment. Only after such an inquiry can an identification of the type of interest the Government must advance to justify the statute be made and an analysis of whether the means chosen in the statute are appropriate to further those interests be undertaken. Plaintiffs assert that the Federal Election Campaign Act (FECA) violates their first amendment rights. In order to accept that claim, the contribution or expenditure of money for political purposes must be considered protected speech or political association. Plaintiffs claim that “[t]he contribution of money to a candidate” is “precisely the sort of [first amendment] associational freedom protected in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973).” PI. Br. at 101. Expenditures, plaintiffs opine, is the basis of every political communication protected by the first amendment and thus must be considered “pure speech”, Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), whose protection “is a major purpose of the amendment.” Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966). Defendants and intervenors, while conceding that campaign contributions can affect first amendment interests, in part respond that money is not equivalent to speech and is, at best, speech plus action. As such, the Government’s interest in regulation is stronger and thus the case does not present the clash of constitutional interests that plaintiffs contend. See United States v. O’Brien, 391 U.S. 367, 376, 88" }, { "docid": "15225090", "title": "", "text": "contributions of such organizations in federal election campaigns “operate in an area of the most fundamental First Amendment activities.” Buckley, 424 U.S. at 14, 96 S.Ct. 612. The First Amendment “protect[s] our cherished right to political speech.” FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir.1997). The First Amendment also protects political association, and the regulation of contributions and expenditures implicates both of these interests. Buckley, 424 U.S. at 14-23, 96 S.Ct. 612. It would be foolhardy to pretend that a ban on the ability of advocacy groups to make contributions and expenditures does not impair their capacity to participate in the political process. Making expenditures and funding campaigns are essential means by which citizens in a democracy can make themselves heard. It is revealing that, even where the Court’s decisions have not addressed campaign contributions and expenditures, they have underscored the First Amendment values that may be served by them. Without the ability to expend funds, it is almost impossible for political expression in our modern society “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). See also Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (noting the “practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,” including “discussions of candidates”); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (noting our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”). Similarly, without the expenditure of funds, “[e]ffective advocacy of both public and private points of view, particularly controversial ones,” will not be significantly “enhanced by group association.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See also Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) (stating that “[t]here can no longer be any doubt that" }, { "docid": "2599477", "title": "", "text": "250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957). Associational rights include activities pursued in the cause of a campaign for public office. Elrod v. Burns, 427 U.S. 347, 370-71, 96 S.Ct. 2673, 2688, 49 L.Ed.2d 547 (1976). The freedom of political association “is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it_” Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). The United States Supreme Court has long recognized that when government regulates political expression and association, “the importance of First Amendment protections is ‘at its zenith.’” Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886, 1894, 100 L.Ed.2d 425 (1988). The right is not absolute, however, even at its zenith of protection, see United States Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973). An interference with associational rights may be constitutional if the statutory infringement is no broader than it needs to be to accomplish its purpose or, in other words, if it is narrowly tailored. See, e.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 1396, 108 L.Ed.2d 652 (1990) (citing Buckley v. Valeo, 424 U.S. 1, 44-45, 96 S.Ct. 612, 647, 46 L.Ed.2d 659 (1976) (per curiam)). Invoking the United States Supreme Court’s opinion in Buckley, 424 U.S. 1, 96 S.Ct. 612, plaintiffs assert that the narrowly tailored standard requires this court to employ strict scrutiny to determine whether the state has demonstrated a compelling state interest and employed “means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. at 25, 96 S.Ct. at 638 (citing Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 548, 42 L.Ed.2d 595 (1975); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963); and Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960)). Defendants propose a standard akin to the one" }, { "docid": "1765615", "title": "", "text": "government” are interests of highest importance. One last benchmark of the Court’s application of the First Amendment to this case bears repeating. In the per curiam opinion in Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) the Court said: In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow, as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 [91 S.Ct. 621, 625, 28 L.Ed.2d 35] (1971), “it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 [78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488] (1958), stemmed from the Court’s recognition that “[effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee “ ‘freedom to associate with others for the common advancement of political beliefs and ideas,’ ” a freedom that encompasses “ ‘[t]he right to associate with the political party of one’s choice.’ ” Kusper v. Pontikes, 414 U.S. 51, 56, 57 [94 S.Ct. 303, 307, 38 L.Ed.2d 260] (1973), quoted in Cousins v. Wigoda, 419 U.S. 477, 487 [95 S.Ct. 541, 547, 42 L.Ed.2d 595] (1975). Looked at against that backdrop defendants’ effort to wrap themselves in the mantle of the First Amendment must fail. They are not seeking to assure, as the Supreme Court said in a different context in Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977), that “advertising [which is after all what defendants’ use of ‘REP’ really is] flows both freely and cleanly.” Instead they are seeking to poison the stream," }, { "docid": "22786977", "title": "", "text": "not before us. . We remain mindful of Justice Frankfurter’s admonition that courts should remain reticent to become ensnared in the “political thicket” of adjudicating gerrymandering claims, Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 1201, 90 L.Ed. 1432 (1946), and of the more recent concern expressed by Justice O'Connor in Bandemer that judicial consideration of claims of political gerrymandering will inevitably lead to a constitutional requirement of “some form of rough proportional representation for all political groups,” Bandemer, 478 U.S. at 145, 106 S.Ct. at 2817 (O’Connor, J., concurring in judgment); see also Alfange, supra note 15, at 186-87 (discussing evils of proportional representation). We fully share these apprehensions. Nonetheless, we remain bound by the dictates of Bandemer. See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). V. RPNC also maintains that the North Carolina method of electing superior court judges infringes. upon its rights to free speech and association in violation of the First Amendment. Specifically, RPNC argues that the electoral system prevents Republicans from fully and effectively participating in the political process, chills the desire of Republicans to engage in vigorous debate and to seek superior court judgeships, and constitutes a state-imposed, de facto requirement of political affiliation with the Democratic Party. Because the authority offered by RPNC is readily distinguishable and its reasoning is not compelling, we conclude that RPNC fails to state a claim under the First Amendment. ■ • A. “[TJhere is practically universal agreement that a major purpose of [the First] Amendment [is] to protect the free discussion of governmental affairs. This of course includes discussions of candidates, ... the manner in which government is operated or should be operated, and all such matters relating to political processes.” Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966). In addition, it is clear that “[t]he First Amendment protects political association as well as political expression.” Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam). RPNC asserts that the First Amendment protects" }, { "docid": "20064479", "title": "", "text": "review, but even if we apply strict scrutiny, the Proposition A limits are narrowly tailored to address a compelling state interest. The Supreme Court identified the interests implicated by contribution limits in Buckley, 424 U.S. at 14, 96 S.Ct. at 632 (citations omitted): [Contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.... The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” ... “[TJhere is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course including] discussions of candidates .... ” “[Contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political par-ties_” Id. at 18, 96 S.Ct. at 634. In view of these fundamental interests, the Court has instructed that campaign contribution limits are “subject to the closest scrutiny.” Id. at 25, 96 S.Ct. at 637 (quoting NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958)). Under this standard, “a significant interference with protected rights of political association may be sustained” only when the State can demonstrate “a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. (quotations omitted) (citing Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 547-48, 42 L.Ed.2d 595 (1975); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960)). After identifying the interests and the applicable level of review, the Court in Buckley, 424 U.S. at 58-59, 96 S.Ct. at 653-54, upheld the constitutionality of the $1,000 contribution limit for federal elected offices. The Court reasoned that the $1,000 contribution limit focused precisely on the problem of large campaign contributions and, therefore, was narrowly tailored to the goal of limiting corruption and the appearance of corruption. Id. at 26-28, 96 S.Ct." }, { "docid": "22533574", "title": "", "text": "applicable to limitations on core First Amendment rights of political expression.\" Id., at 44-45, 96 S.Ct. 612. Under exacting scrutiny, the Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). By contrast, the Court concluded that contribution limits impose a lesser restraint on political speech because they \"permit[ ] the symbolic expression of support evidenced by a contribution but do[ ] not in any way infringe the contributor's freedom to discuss candidates and issues.\" Buckley, 424 U.S., at 21, 96 S.Ct. 612. As a result, the Court focused on the effect of the contribution limits on the freedom of political association and applied a lesser but still \"rigorous standard of review.\" Id., at 29, 96 S.Ct. 612. Under that standard, \"[e]ven a ' \"significant interference\" with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.\" Id., at 25, 96 S.Ct. 612 (quoting Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975)). The primary purpose of FECA was to limit quid pro quo corruption and its appearance; that purpose satisfied the requirement of a \"sufficiently important\" governmental interest. 424 U.S., at 26-27, 96 S.Ct. 612. As for the \"closely drawn\" component, Buckley concluded that the $1,000 base limit \"focuses precisely on the problem of large campaign contributions ... while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.\" Id., at 28, 96 S.Ct. 612. The Court therefore upheld the $1,000 base limit under the \"closely drawn\" test. Id., at 29, 96 S.Ct. 612. The Court next separately considered an overbreadth challenge to the base limit. See id., at 29-30, 96 S.Ct. 612. The challengers argued that the base" }, { "docid": "8650225", "title": "", "text": "we in politics are criticized.” During this September 26, 1984 debate, the House defeated three proposed amendments to Senate Bill 387 (which became Act 190) to moderate the increase in required signatures without making any reference to the likely impact the higher requirements would have on small parties. Act 190 effectively denies the Consumer Party the opportunity to participate in party primaries (national, state and local) and, because a party nominates only by primary, it bars the Consumer Party from access to the general election ballot. Discussion Numerous Supreme Court opinions considering the validity of laws regulating ballot access make clear that voters, political parties, and, to a lesser extent, candidates have protected constitutional rights. The right to vote in a general election is a “fundamental political right ... preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). State laws which restrict the franchise, such as durational residency or pre-election registration requirements, are subject to strict scrutiny. See Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). The right to form political associations derives from the First Amendment guarantee of rights to freedom of speech, petition for redress of grievances, and peaceable assembly. See Cousins v. Wigoda, 419 U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975) (party and its supporters have constitutional right of political association). This country’s representative and elective system of government necessitates that “a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections.” Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303, 308, 38 L.Ed.2d 26 (1973). Since voters can express their political preferences only through candidates, whether party members or independent, ballot access is intertwined with the rights of voters and entitled to protection. See Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974) (invalidating state law denying candidacy to one unable to pay a filing fee). Laws which restrict ballot access by imposing party and" }, { "docid": "12872338", "title": "", "text": "Court has slowly come to realize.\"). . Plaintiffs' brief characterizes the complaint as raising other Free Exercise claims: \"Plaintiffs [also] state that they conduct their daily lives in accordance with their sincerely held religious beliefs, which includes making healthy lifestyle choices, paying only for health care procedures that are necessary ... and paying for their health care services as they need them.” (Pls.' Opp’n 35-36.) A fair reading of the complaint does not support this novel characterization, and the parties have not briefed these issues. . Government actions also may infringe on the freedom to associate by imposing penalties or withholding benefits from individuals because of their membership in a disfavored group, Healy v. James, 408 U.S. 169, 180-84, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), requiring disclosure of the fact of membership in a group seeking anonymity, Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 91-92, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982), or by interfering with the internal affairs of a group, Cousins v. Wigoda, 419 U.S. 477, 487-88, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975). . United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), the only case Plaintiffs cite in support of this argument, addressed a challenge under the right to freely exercise one’s religion, not to freely associate with others. . See also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 566, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (state law cannot require a parade to include a group whose message the parade's organizer does not wish to send); Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 20-21, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); accord id., at 25, 106 S.Ct. 903 (Marshall J., concurring); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (right-of-reply statute violates editors' right to determine the content of their newspapers). . In regard to forced" }, { "docid": "1858355", "title": "", "text": "running on a shoestring. The Supreme Court has considered such potential effects of a challenged statute: Miami Herald Publishing Co. v. Tornillo, supra; Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) and Grosjean, supra. The effort of the Legislature in seeking to make the news media advertising available to candidates of whatever degree of financial backing is laudable. However commendable the purpose in the exercise of the police power by various legislatures, the Supreme Court has consistently struck down statutes which restrain the content of the publication. E. g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Miami Herald Publishing Co. v. Tornillo, supra; Mills v. Alabama, supra. The fact that the restraint in the instant statute is aimed at revenue rather than content does not insulate it from the constraints of the First Amendment. The constitutionality of a statute aimed solely at institutions protected by the First Amendment is determined by the existence of impact not whether the impact is onerous or slight. Constitutionality cannot turn on a degree of economic burden because once validated the statute’s burden may be increased so as to destroy the protected activity. Grosjean, supra 297 U.S. at 245, 56 S.Ct. 444. Consequently the protection of the First Amendment against prior restraints by government extends to this diminution of advertising revenue. ELECTION DAY PUBLICATION STATUTE Section 104.35, Florida statutes has been in existence in basically this form since 1909 with no reported decisions dealing with it. Unquestionably the legislature hoped to prevent last minute “smear tactics” against candidates. However, Chief Justice Burger puts such legislative desires into consti tutional focus by his observation in Miami Herald v. Tornillo, supra: “a responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.” 94 S.Ct. at 2839. Plaintiffs assert that this statute founders on the decision of Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). In that decision the Alabama statute made it a crime" }, { "docid": "1858353", "title": "", "text": "mainstay of the newspaper business.” Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 604, 73 S.Ct. 872, 878, 97 L.Ed. 1277 (1953). The Supreme Court has also observed: “The power of a private owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers —and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117; 93 S.Ct. 2080, 2094, 36 L.Ed.2d 772 (1973), quoted approvingly in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831 at 2838, 41 L.Ed.2d 730 (1974). Any ambiguity about these tracks on the constitutional trail was dispelled by Miami Herald Publishing Co. v. Tornillo, supra, in which the court struck down a Florida statute compelling the newspaper to print, free of cost, any reply a political candidate wants to make if the newspaper assqils his character or official record. The court held: “Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers, (citing Grosjean). The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print.” 94 S.Ct. at 2839. In Tomillo the court felt that the cost of printing a reply was a penalty even though the newspaper could have expanded its column space infinitely to accommodate replies. The penalty in the instant case is not nearly so subtle although it too is rather small in the terms of overall impact on advertising revenue. If the loss of revenue would prove to be significant, the newspapers might very well decide to decline all political advertising, thus severely limiting media access • for all candidates whether well-heeled or" }, { "docid": "23462763", "title": "", "text": "2673, 49 L.Ed.2d 547 (1976) (plurality opinion)]; Cousins v. Wigoda, 419 U.S. 477, 487 [, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975)]; Kusper v. Pontikes, 414 U.S. 51, 56-57 [, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973)]; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 [, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)]. Abood v. Detroit Board of Education, 431 U.S. 209, 233, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). The right of association is closely allied to freedom of speech and, like free speech, lies at the foundation of a free society. Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Because “[Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” NAACP v. Alabama ex rel. Patterson, 357 U.S. at 460, 78 S.Ct. at 1171, the first amendment guarantees the freedom to “associate with others for the common advancement of political beliefs and ideas . . . Kusper v. Pontikes, 414 U.S. 51, 56, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973). “The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U.S. 23, 30 [, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)].” Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973). In the present case, the defendants have burdened the rights of the plaintiff candidates and voters to associate. The Supreme Court has repeatedly stated that candidacy restrictions which have the effect of excluding certain candidates from the ballot burden the associational rights of those candidates and their supporters by rendering less valuable their freedom to collectively advance political ideas. E. g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 188, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In much the same way, when the state acts to oppose the electoral efforts of certain candidates on the ballot, it renders less valuable" }, { "docid": "15225091", "title": "", "text": "of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). See also Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (noting the “practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,” including “discussions of candidates”); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (noting our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”). Similarly, without the expenditure of funds, “[e]ffective advocacy of both public and private points of view, particularly controversial ones,” will not be significantly “enhanced by group association.” NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). See also Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) (stating that “[t]here can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is ... protected by the First and Fourteenth Amendments,” and that “[t]he right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom”). This language from non-funding decisions does not suddenly become inoperative when contributions and independent expenditures are at issue. It is true that there exists a in the weight the First Amend-ment accords to contributions and and that an interest of the highest First Amendment order attaches to expenditures. The Court in Buckley concluded that “although [FECA’s] contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.” 424 U.S. at 23, 96 S.Ct. 612. See also FEC v. Colorado Republican Fed. Campaign Comm., 583 U.S. 431, 121 S.Ct. 2351, 2356, 150 L.Ed.2d 461 (2001) (“Colorado II”); Shrink Missouri, 528 U.S. at 386-88, 120 S.Ct. 897; Colorado Republican Fed." }, { "docid": "2599478", "title": "", "text": "infringement is no broader than it needs to be to accomplish its purpose or, in other words, if it is narrowly tailored. See, e.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657, 110 S.Ct. 1391, 1396, 108 L.Ed.2d 652 (1990) (citing Buckley v. Valeo, 424 U.S. 1, 44-45, 96 S.Ct. 612, 647, 46 L.Ed.2d 659 (1976) (per curiam)). Invoking the United States Supreme Court’s opinion in Buckley, 424 U.S. 1, 96 S.Ct. 612, plaintiffs assert that the narrowly tailored standard requires this court to employ strict scrutiny to determine whether the state has demonstrated a compelling state interest and employed “means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. at 25, 96 S.Ct. at 638 (citing Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 548, 42 L.Ed.2d 595 (1975); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963); and Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960)). Defendants propose a standard akin to the one applied to time, place and manner restrictions in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). They argue that the statute should be upheld “ ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation,’ ” Id. at 799, 109 S.Ct. at 2758 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985). However, this case is not about a time, place or manner restriction. It addresses a direct prohibition on a protected activity, making the Ward standard inappropriate. Defendants also propose that the contested provision warrants a lesser degree of scrutiny, corresponding to that accorded unions, corporations or similar kinds of organizations, because it regulates lobbyists, who threaten the integrity of the political process in a way that ordinary citizens do not. Citing Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 561, 74 L.Ed.2d 364 (1982), defendants assert that the court need" }, { "docid": "2701724", "title": "", "text": "state motto on license plates); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (state law requiring newspaper to carry replies of political candidates it had opposed editorially). These cases stand in sharp contrast to PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), in which the Supreme Court upheld a California constitutional provision interpreted to protect speech and petitioning at a privately owned shopping center. Significantly, the speaker’s right to speak on the objecting owner’s property upheld in Prune-Yard had nothing to do with the content or subject matter of his speech, and there was no danger that, in affording the speaker access to his shopping center, the owner would be affected to any degree in his ability to speak his own piece. “Speaker-partial” regulations, or those that purportedly favor one group of speakers at the expense of others, similarly are not subject to strict scrutiny unless they are content-based. Walsh v. Brady, 927 F.2d 1229, 1236 (D.C.Cir.1991); see id. at 1238-39 (Williams, J., concurring). Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 669 (1976), the principal speaker-partiality case cited by the plaintiffs, is not to the contrary. In Buckley, the Supreme Court struck down a statutory provision imposing a $1,000 limit on the amount which an individual could spend to support a particular political candidate. The government sought to justify the provision on the ground that it was necessary to provide those of modest means with an opportunity to participate in the political process equal to that of the wealthy. Id. at 48, 96 S.Ct. at 648. Implicit in this reasoning, of course, was a Congressional judgment that the speech of those spending over $1,000 was not only “louder” than those spending less than $1,000, but was also different and, more importantly, more sinister. See id. at 16-17, 96 S.Ct. at 633-34. Buckley is thus a case in which the government sought, in effect, to suppress the expression of a meretricious idea. Speaker partiality alone, however, absent evidence that the government’s distinction" }, { "docid": "23462760", "title": "", "text": "431 U.S. 209, 231, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977); id., at 259, 97 S.Ct. 1782 (Powell, J., concurring in the judgment); Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 46 L.Ed.2d 659 (1975); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). To the extent that the allegations of the present complaint are true, see pp. 1344-1349, infra, the defendants have clearly burdened the plaintiff candidates’ rights of free political belief and expression. As noted above, impairment of a candidate’s efforts to obtain public office can not, in itself, be equated with interference with protected first amendment freedoms. Trafelet v. Thompson, 594 F.2d 623, 632 (7th Cir.), cert. denied, - U.S. -, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979); Newcomb v. Brennan, 558 F.2d 825, 828 (7th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977); see Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). Here, however, it is alleged that the defendants have intentionally used the power of the state to impede plaintiffs’ candidacies because plaintiffs 'have chosen to run in opposition to the Democratic organization. Where state officials burden an individual’s candidacy in order to discourage opposition to some more favored candidate or viewpoint, their actions constitute a punishment based on the content of a communicative act. Newcomb v. Brennan, 558 F.2d at 828. As the court observed in Newcomb, “[plaintiff’s interest in running for [public office] . and thereby expressing his political views without interference from state officials who wished to discourage the expressions of those views lies at the core of the values protected by the First Amendment.” 558 F.2d at 829. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should" }, { "docid": "22786978", "title": "", "text": "from fully and effectively participating in the political process, chills the desire of Republicans to engage in vigorous debate and to seek superior court judgeships, and constitutes a state-imposed, de facto requirement of political affiliation with the Democratic Party. Because the authority offered by RPNC is readily distinguishable and its reasoning is not compelling, we conclude that RPNC fails to state a claim under the First Amendment. ■ • A. “[TJhere is practically universal agreement that a major purpose of [the First] Amendment [is] to protect the free discussion of governmental affairs. This of course includes discussions of candidates, ... the manner in which government is operated or should be operated, and all such matters relating to political processes.” Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966). In addition, it is clear that “[t]he First Amendment protects political association as well as political expression.” Buckley v. Valeo, 424 U.S. 1, 15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam). RPNC asserts that the First Amendment protects the rights of citizens to cast an effective vote regardless of political persuasion and to effectively associate for the advancement of political beliefs. Because the North Carolina election system prevents Republicans from electing the candidates of their choice for superior court judgeships, RPNC contends that these alleged rights have been violated. RPNC confuses the protection offered by the First and Fourteenth Amendments, and in so doing, attempts to extend the guarantees of the First Amendment. As noted previously, the Equal Protection Clause of the Fourteenth Amendment ensures equal weighing of votes, or to use RPNC’s terms, equal effectiveness of votes. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The First Amendment, in contrast, protects the right to cast .an effective vote by prohibiting restrictions on ballot access that impair the ability of citizens to express their political preferences, or that limit the opportunity for citizens to unite in support of the candidate of their choice. See Anderson v. Celebrezze, 460 U.S. 780, 787-88, 794, 103 S.Ct. 1564, 1569-70," }, { "docid": "23157875", "title": "", "text": "of political canvassing or political action around the polls.” Browning, 572 F.3d at 1219. Moreover, both statutes passed strict scrutiny (more exacting than here) asserting state interests identical to those in Burson: protecting the voters from confusion and undue influence, and preserving the integrity and reliability of elections. Id.; Schirmer, 2 F.3d at 120. .EIW’s new argument that some state officials are Democrats (and its organization's members are not) is not enough to state a plausible claim for First Amendment retaliation. SHEPHERD, Circuit Judge, concurring in part and dissenting in part. I am pleased to concur with the majority’s decision holding (1) that the district court improperly considered matters outside the pleadings when dismissing the plaintiffs’ as-applied challenge and (2) that the plaintiffs have failed to state an equal protection claim. Because I respectfully disagree with the majoritys conclusion that the statutory restrictions, which ban the wearing of any political insignia, are reasonable in light of the need to maintain “peace, order, and decorum,” to “protect[ ] voters from confusion and undue influence,” and to “preserv[e] the integrity of its election process” in the polling place, I dissent from the affirmance of the district court’s dismissal of the plaintiffs’ claim that the statute is facially unconstitutional. As the majority points out, for the speech restrictions in the polling place to survive constitutional scrutiny, the restrictions must be “viewpoint neutral and ‘reasonable in light of the purpose which the forum at issue serves.’ ” See supra at 1057 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). “The state has a legitimate interest in ‘maintaining] peace, order and decorum’ in the polling place[,]” supra at 1057 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)), “in ‘protecting voters from confusion and undue influence’ and ‘preserving the integrity of its election process.’” Supra at 1057 (quoting Burson v. Freeman, 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)). I have no reservations about the majority’s conclusion that the statute is viewpoint neutral or" }, { "docid": "1858354", "title": "", "text": "on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers, (citing Grosjean). The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print.” 94 S.Ct. at 2839. In Tomillo the court felt that the cost of printing a reply was a penalty even though the newspaper could have expanded its column space infinitely to accommodate replies. The penalty in the instant case is not nearly so subtle although it too is rather small in the terms of overall impact on advertising revenue. If the loss of revenue would prove to be significant, the newspapers might very well decide to decline all political advertising, thus severely limiting media access • for all candidates whether well-heeled or running on a shoestring. The Supreme Court has considered such potential effects of a challenged statute: Miami Herald Publishing Co. v. Tornillo, supra; Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) and Grosjean, supra. The effort of the Legislature in seeking to make the news media advertising available to candidates of whatever degree of financial backing is laudable. However commendable the purpose in the exercise of the police power by various legislatures, the Supreme Court has consistently struck down statutes which restrain the content of the publication. E. g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Miami Herald Publishing Co. v. Tornillo, supra; Mills v. Alabama, supra. The fact that the restraint in the instant statute is aimed at revenue rather than content does not insulate it from the constraints of the First Amendment. The constitutionality of a statute aimed solely at institutions protected by the First Amendment is determined by the existence of impact not whether the impact is onerous or" }, { "docid": "8650226", "title": "", "text": "92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). The right to form political associations derives from the First Amendment guarantee of rights to freedom of speech, petition for redress of grievances, and peaceable assembly. See Cousins v. Wigoda, 419 U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975) (party and its supporters have constitutional right of political association). This country’s representative and elective system of government necessitates that “a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections.” Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303, 308, 38 L.Ed.2d 26 (1973). Since voters can express their political preferences only through candidates, whether party members or independent, ballot access is intertwined with the rights of voters and entitled to protection. See Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974) (invalidating state law denying candidacy to one unable to pay a filing fee). Laws which restrict ballot access by imposing party and candidate qualifications must be able to pass constitutional challenge on two related grounds: first, that rights of political association and voting are not impermissibly burdened in violation of the First and Fourteenth Amendments; and second, that small political parties and their members and candidates are not discriminated against in violation of the Equal Protection Clause of the Fourteenth Amendment. Over the past two decades, the Supreme Court has frequently addressed the applicable standard of review for ballot access restrictions. Though endorsing at times both the strict scrutiny and rational relationship tests, the Court now recognizes that, “constitutional challenges to specific provisions of a state’s election laws [cannot] be resolved by any litmus-paper test that will separate valid from invalid restrictions.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974) (upholding disaffiliation requirement and remanding to district court to determine whether five percent signature requirement from restricted pool of eligible signers was unconstitutional). In Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), holding Ohio’s early" } ]

[ { "docid": "5695435", "title": "", "text": "she had told her mother, the latter called the child’s married sister who asked a neighbor across the hall what she should do about it. The police were then called. Thus it is seen that the testimony upon which the conviction rests came from the child and was denied by the accused. The Government at the close of its case tendered the mother to the defendant if he wished to call her. A short recess was taken, after which the evidence was concluded by the testimony of the defendant and others he called. The mother and married sister were not called. Four days after the verdict a motion for a new trial was made, resting primarily upon an affidavit of the mother. In it she states she was present when the child came home on the evening in question. The child had testified that when she came home she was crying. The affidavit of the mother says her daughter first came in through the living room and there was nothing unusual about her appearance until she came out of the bathroom, went into the kitchen, and, crying bitterly, told the mother of the alleged incident. The affidavit also states, “When I asked Gertrude why she went to Mr. Benton’s apartment, she said that she was looking for Barbara Jean, the daughter of Mr. Benton. At the time, Gertrude had been angry for a time with this little girl, Barbara Jean, and had not been on speaking terms with her. * * * ” This is at variance in two respects with the testimony of Gertrude on the trial. As we have shown, she testified that she was called by appellant to come, and that she was friendly with his daughter, Barbara Jean. The mother’s affidavit concludes, “ * * * and in my opinion, my conscience does not allow me to believe that anything happened to my girl on that night. I heard what Mr. Benton said, and I heard what my daughter said.” The trial court thought that the child had testified truthfully and denied the motion for a" } ]

[ { "docid": "14981443", "title": "", "text": "said, “ * * * I am not experienced with either one of those kind of things * * She said she knew “something” was wrong with him “because he didn’t act right * * She added that after her brother had been committed to “the insanity,” she saw some insane people and “he acted Eke an insane person.” ¿ . Wright v. United States, 102 U.S.App.D.C.-. 250 F.2d 4; Carter v. United States, 102 U.S.App.D.C.-, 252 F.2d 608. . 99 U.S.App.D.C. at page 240, 239 F.2d at page 60. . Wright v. United States, supra note 3. . Blunt v. United States, 1957, 100 U.S. App.D.C. 266, 244 F.2d 355, 364, note 23. . Williams v. United States, 101 U.S.App. D.C.-, 250 F.2d 19, quoting Carter v. United States, supra note 3. . Appellant’s trial was held only shortly after our Douglas decision and before the more recent decisions referred to in the text in which we discussed the nature of the Government’s burden when a defense of insanity may reasonably be anticipated or is properly raised. DANAHER, Circuit Judge (dissenting). Appellant here moved for judgment of acquittal by reason of insanity notwithstanding the verdict. The trial judge ruled that the motion should be denied on the merits. Here, the majority is substituting its judgment for that of the trier who saw and heard the witnesses and was in the best possible position to appraise the evidence and the weight to be accorded to it. His review of the case to my mind conveys complete conviction that the question was properly left to the decision of the jury. I understand that a jury is not bound to credit the opinions of psychiatrists but rather is free to accept or reject their testimony, just as it may do as to the testimony of any other witness. There is no suggestion that there was error in the conduct of the trial, and I would affirm on the merits. . He also concluded that he lacked authority to grant the motion. To the extent that Wright v. United States, 1957, 101 U.S.App.D.C.—," }, { "docid": "13556025", "title": "", "text": "do so. But she did not testify that her taking part in intercourse was induced by those threats, or by words of any sort. She testified to the contrary. When she was asked, “how did you happen to have this second intercourse with Mr. Farrar?”, she replied: “He made me have the second the same as the first. Q. What did he say to you? A. He didn’t say anything. Every time he got ready to have inter course with me, he put the knife around my neck.” She testified that he had a knife in his hand, and constantly pressed it against her, all the time they were walking together through the streets, through the door into the house, and upstairs to his room, and that he had it in his hand much of the time she was in his room. Yet she repeatedly testified that she never saw it. There were lights in the streets. There was a light in the room. The girl’s eyes were not closed and she was “looking at him.” Neither the girl nor her clothing was marked by a knife. The police promptly searched the room. No knife was ever found. It is nearly or quite incredible that appellant could have used a knife as extensively as the girl said he did without her ever seeing it. It is so nearly incredible that a reasonable inference, if not the only reasonable inference, from the testimony of the girl herself, is that appellant did not use a knife. And there is no evidence that her participation in intercourse was induced by any other kind of force or threat. She afterwards accepted $15 from a girl friend of appellant. She gave a receipt, in her own handwriting, which was produced in court. On the witness stand, she admitted that she wrote the receipt but denied that she got the money. The appellant testified that he never threatened the girl, with a knife or otherwise ; that he promised to pay her; that they had intercourse with her consent; and that he did not pay her." }, { "docid": "2846016", "title": "", "text": "court’s decision to send this case to the jury, he must establish that at the point when the motion for acquittal was made the Government had not introduced such evidence that reasonable persons could find guilt beyond reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the jury to reach a verdict of guilt by the requisite standard. Crawford v. United States, 126 U.S.App. D.C. 156, 158, 375 F.2d 332, 334 (1967) (emphasis in original); accord, e. g., Thompson v. United States, 132 U.S.App. D.C. 38, 405 F.2d 1106 (1968); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). In challenging the validity of the trial court’s determination, Appellant presents a staccato list of points which are said to militate against a finding of non-consent. Among those offered are the Complainant’s failure to forcefully resist, her failure to scream out or attempt escape, the fact that she removed her own clothing, the absence of any weapon, and the fact that the Appellant later returned to the hospital parking lot to help her start her car. Indeed, like many records in rape cases, the evidence is not always clear-cut. Nevertheless, the evidence presented in the Complainant’s testimony was not in itself incredible as was that of the complaining witness in Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1960), a case upon which Appellant places great reliance. In denying the Government’s petition for rehearing en banc in Farrar and thereby preserving this court’s earlier reversal of a conviction for rape, then Chief Judge Prettyman explained that acquiescence may be deemed nonconsensual in the absence of force if the victim is put in genuine apprehension of death or bodily harm. The determinative factor in Farrar was that “[t]he complaining witness rested her claim of fear upon a simple physical fact — a knife.” Id. at 212, 275 F.2d at 876. “The only basis for fear advanced by the prosecutrix was the knife; she suggested" }, { "docid": "2846040", "title": "", "text": "return to the Hospital Appellant said that he would return to St. Elizabeths that afternoon to help her start her car but he thought she would “probably have policemen everywhere”; she replied that she would not. . At the time of his arrest, Appellant had Complainant’s car keys in his possession. The Complainant also identified as hers a pair of white gloves found in Appellant’s car at the time of his arrest. . In his closing argument, trial counsel for Appellant argued both the absence of any sexual encounter and the issue of non-consent : One more thing: I’m going to argue consent, and I’m going to argue consent because, of course, there is evidence of it, but I don’t concede one second that the act of intercourse took place. I want you to understand that. The defendant has this right. . Other facts which bore on the credibility of the complaining witness’ testimony in Farrar also distinguish it from this case. In Farrar the girl was accosted on a public street and walked two or three blocks to her assailant’s room; both the street and room were lighted, thereby facilitating her observation of any weapon she thought he had; the incident stretched over a two to three hour period during which time her assailant left her alone in his room. . See Thompson v. United States, supra; Crawford, supra; Thomas v. United States, 93 U.S.App.D.C. 392, 211 F.2d 45, cert. denied, 347 U.S. 969 (1954); Curley, supra. . Examples are: her statement that Appellant arrived at the gasoline station after she did as contradicted by the attendant’s relation of the sequence of arrivals; her denial that she asked for leave when she arrived at the supervisor’s office as con trasted with the supervisor’s recollection to the contrary; her testimony that the crime took place on the front seat of Appellant’s car whereas the expert witness was unable to find any strands of thread matching her clothing on the seat. . Examples include the Government’s failure to call the Complainant’s husband or the attendant from the second gas station where" }, { "docid": "13525920", "title": "", "text": "contention that the government proved proposition (2). The defense sought to prove, and the government to disprove, a causal relation between appellant’s mental condition and the attempted abortion, but the testimony on this point was inconclusive. B. g., on cross-examination Dr. Hoye testified as follows: “Q. Well, you don’t know whether the act of abortion performed by this defendant was or was not the product of the mental illness you speak of, do you? A. No, I said it could possibly be. “Q. But you don’t know that, doctor? A. It is only my opinion. “Q. And your opinion in that regard— it wouldn’t surprise you greatly if the act of abortion was not the product of the mental disease, would it? A. In her case I think it would.” . We must reverse a criminal conviction when it is “clear to us that upon the evidence * * * a reasonable mind must necessarily have bad a reasonable doubt as to * * * guilt.” Cooper v. United States, 1954, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41. Hammond v. United States, 1942, 75 U.S.App.D.C. 397, 127 F.2d 752; Sleight v. United States, 1936, 65 App.D.C. 203, 82 F.2d 459; Maryland & Virginia Milk Producers Ass’n v. United States, 1951, 90 U.S.App.D.C. 14, 193 F.2d 907; Benton v. United States, 88 U.S.App.D.C. 158, 188 F.2d 625; Kelly v. United States, 90 U.S.App. D.C. 125, 194 F.2d 150; and Wilson v. United States, 1959, 106 U.S.App.D.C. 226, 271 F.2d 492, illustrate this principle. See also Farrar v. United States, 107 U.S .App.D.C.-, 275 F.2d 868. Cf. Yates v. United States, 354 U.S. 298, 331, 77 S.Ct. 1064, 1 L.Ed.2d 1356. There is nothing new about applying this familiar principle to the issue of insanity. In Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59, we said: “Wo find it impossible to hold in the face of the generally uniform testimony of the three dis interested psychiatrists, the only ones who testified, that this test essential to the validity of the verdicts was met. On any rational" }, { "docid": "13556029", "title": "", "text": "it? A. I wasn’t trying to see it. * * * When I was sitting on the bed, he put the knife to my neck, like around like that (indicating). I think it was a knife; I didn’t turn around to see what it was. “Q. After you stood up, wbat happened? A. He told me to pull off my clothes. “Q. What did he do? Was ho doing anything? A. He stood up there with the knife in his hand.” . E. g., “The Court: Did you ever see, not feel — Did you ever see what you thought was a knife or any kind of sharp instrument at any time while you were with the defendant? “The Witness: I will toll you the truth, I never did see it but I felt it.” . Irma Smith, a policewoman, testified that appellant told the police he “asked [the girl] to take her clothes off and to get into bed” and that he “said at that time he might have held the knife against her neck.” But Policeman Machie denied that appellant made such a statement: “The Court: He did not say he might have held a knife to her; he told you he might have said he might cut her if she didn’t go with him; is that right? The Witness: Those were his words * Appellant denied both accounts of what he said to the police. He testified: “The officer asked me what did I say. The secretary was taking down what he asked me more or less and I said I didn’t say that, and she still took it down.” . Hopkins v. United States, 107 U.S.App. D.C. -, 275 F.2d 155; quoting Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41, and citing other cases. In several of the cases cited in Hopkins, as in the present case, the defendant’s guilt would have been clear beyond a reasonable doubt if the veracity of an essential witness had been unquestionable. Benton v. United States, 88 U.S.App.D.C. 158, 188 F.2d 625; Kelley v. United States," }, { "docid": "2846019", "title": "", "text": "drove her to a deserted location, and told her it would be useless for her to scream because no one would hear. The Appellant was not unaware of complainant’s fright; she testified that he had “said that he knew I was scared because I was so nervous.” In these circumstances, this court’s observations in Ewing v. United States, 77 U.S.App. D.C. 14, 16, 135 F.2d 633, 635 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943) (emphasis added), are worth reiterating: There are cases, especially older ones from other jurisdictions, which seem to require resistance to the victim’s ultimate physical powers in order to sustain conviction for this crime. But the law is no longer in this last-ditch stage. Whatever it may have been in other times, it is generally settled now that consent is not shown when the evidence discloses resistance is overcome by threats which put the woman in fear of death or grave bodily harm, or by these combined with some degree of physical force. Therefore, despite Appellant’s protestations of “an insurmountable evidentiary gap on the consent issue,” we feel that the trial judge correctly viewed the evidence as such “that a reasonable mind might fairly have a reasonable doubt or might not have such doubt” on the question of consent. Crawford, supra, 126 U.S.App.D.C. at 158, 375 F.2d at 334 (emphasis in original). The District Judge was required to view the evidence at the close of the Government’s case in the light most favorable to the Government’s position. Having made this determination based on testimony which was not inherently incredible, the case was for the trier and not the trial judge, and the motion for directed verdict of acquittal was properly denied. Appellant’s contention that the totality of the evidence adduced at trial was insufficient to sustain the jury’s verdict is also unavailing. Appellate counsel makes a concerted attack on the credibility of the Complainant, pointing out various specific inconsistencies between her testimony and that of other witnesses, and even raises a “number of nagging questions” concerning certain witnesses who were not" }, { "docid": "13556031", "title": "", "text": "90 U.S.App.D.C. 125, 194 F.2d 150; Wilson v. United States, 1959, 106 U.S.App.D.C. 226, 271 F.2d 492. Decisions sustaining particular verdicts are sometimes accompanied by dicta that all verdicts must be sustained. Decisions rejecting particular verdicts prove the contrary. So does the practice of directing verdicts. WILBUR K. MILLER, Circuit Judge (dissenting). Farrar was tried and found guilty by Judge Schweinhaut, sitting without a jury. The appellant first denied and then admitted having had intercourse with the complaining witness, but said she had submitted voluntarily. So the issue at the trial was whether the victim had consented. She testified Farrar met her on the street at night and, at what she thought was the point of a knife in her back, marched her to his apartment where, under threats of bodily injury, he forced her to yield to him. As soon as she escaped from the scene, the girl ran to a nearby fire house and reported the attack, whereupon the police were called. It was argued strongly that the evidence was insufficient to support the conviction because the girl never saw a knife and Farrar had none when he was arrested at the apartment soon after the event. The majority adopt that view. They also say that in other respects the testimony of the complaining witness was incredible; but in so doing they substitute their opinion concerning the credibility of witnesses for that of the trial judge. Before discussing the law as to whether an appellate court may make that substitution, I think it well to point out what I regard as infirmities in the majority’s statement of the case which seem to me to make it fall short of being an objective narrative. When the testimony is viewed objectively, it becomes apparent that the case turns on the credibility of the witnesses and not on the sufficiency of the evidence; that there was evidence sufficient to convict if the prosecution’s witnesses were credited. At the outset, the majority say, “The complaining witness was an 18-year old girl to whom intercourse was not a new experience.” This seemingly implies" }, { "docid": "2697053", "title": "", "text": "block, and that she had had two verbal encounters with him on the two days preceding the incident. The father, called as the next witness, testified that he was awakened by the noise of a door rattling or slamming. Shortly thereafter he heard his daughter; she “hollered, fussing.” He went downstairs and asked his daughter what was wrong. When the witness started to recount his daughter’s response an objection was'made and overruled. The witness then gave as much of his daughter’s statement as he could recollect, which included the identity of the defendant, that the latter had broken in the house “and tried to commit a crime upon” her, and had then run out the back door and slammed it. Two police officers followed the father to the stand. They had arrived at the scene about 25 minutes after the incident. Over objection, they were allowed to testify in considerable detail concerning the statement that the complaining witness made to them. Her statement to them, as they reported it, corresponded very closely with the account of the incident given by her on the stand. This testimony and that of the father were referred to by the prosecuting attorney, in his closing remarks to the jury, to show that the statements of the complaining witness had been “perfectly consistent throughout.” I. We first consider appellant’s contention that he was entitled to a directed verdict ■of acquittal on both counts. As to the .alleged assault with intent to rape (Count 2), he says there was no evidence of intent to achieve carnal knowledge by force and against the will of the complainant. A motion seeking a directed ■verdict on this ground was made at the close of all the evidence, and was denied. We think it should have been granted. In Hammond v. United States, 75 U.S.App.D.C. 397, 398, 127 F.2d 752, 753 (1942), we said: “In order to make out a case of assault with intent to commit rape, it is essential that the evidence should show beyond a reasonable doubt (1) •an assault, (2) an intent to have carnal knowledge" }, { "docid": "13525921", "title": "", "text": "218 F.2d 39, 41. Hammond v. United States, 1942, 75 U.S.App.D.C. 397, 127 F.2d 752; Sleight v. United States, 1936, 65 App.D.C. 203, 82 F.2d 459; Maryland & Virginia Milk Producers Ass’n v. United States, 1951, 90 U.S.App.D.C. 14, 193 F.2d 907; Benton v. United States, 88 U.S.App.D.C. 158, 188 F.2d 625; Kelly v. United States, 90 U.S.App. D.C. 125, 194 F.2d 150; and Wilson v. United States, 1959, 106 U.S.App.D.C. 226, 271 F.2d 492, illustrate this principle. See also Farrar v. United States, 107 U.S .App.D.C.-, 275 F.2d 868. Cf. Yates v. United States, 354 U.S. 298, 331, 77 S.Ct. 1064, 1 L.Ed.2d 1356. There is nothing new about applying this familiar principle to the issue of insanity. In Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59, we said: “Wo find it impossible to hold in the face of the generally uniform testimony of the three dis interested psychiatrists, the only ones who testified, that this test essential to the validity of the verdicts was met. On any rational view of this evidence, emanating from Government sources, reasonable doubt existed as to Douglas’ s.anity * * *. True, there was non-expert testimony. But this, as will be seen from its outline earlier in this opinion, cut both, ways * * *. Our judicial conclusion that as a factual matter a reasonable doubt was created by the disinterested medical testimony, coupled with the adjudication of unsoundness of mind and the hospitalization for eighteen months, is not changed by the lay witnesses who testified only as to Douglas’ conduct during the robberies and shortly thereafter.” See also Satterwhite v. United States, 105 U.S.App.D.C. 398, 267 F.2d 675. BASTIAN, Circuit Judge (dissenting). Appellant was convicted of an attempted abortion resulting in death, punishable, under the D.C.Code, as second degree murder. The attempted abortion was performed in an outrageous and brutal manner, the details of which are too repulsive for recital as a part of this opinion. Although the able counsel for appellant has raised the issue of the sufficiency of the evidence to implicate her in this" }, { "docid": "21187061", "title": "", "text": "you all the time at night? A Yes, sir. Q And you are sure about that? A Yes, I am. ♦ * sH »!* ❖ Me. Bellow [Appellant’s counsel]. Your Honor, during the recess 1 was, informed by the last witness, Mrs. Ethel Howard, that she did not understand the Prosecutor’s questions to her during the course of the cross-examination. And X respectfully ask permission to recall her so that I can— The Coubt. You talked with her? Me. Bellow. Yes, I did. The Couet. You may not recall her. . Our doubts that it is have been indicated hereinabove. The dissent cites Redfield v. United States, 117 U.S.App.D.C. 231, 328 F.2d 532, cert. denied 377 U.S. 972, 84 S.Ct. 1654, 12 L.Ed.2d 741 (1964), and Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233 (1964), both decided since NicJeens, in support of its representation. We note only that in Red-field the defendant’s sentence could clearly have been supported by an offense charged to have occurred within three months prior to his arrest. Indeed, the indictment charged and the defendant was convicted of an offense committed on the day of arrest and two days after the swearing out of the complaint. Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government. DANAHER, Circuit Judge (dissenting). I dissent from the position announced by my colleagues. If I correctly penetrate their circumlocution, they erroneously in my view undertake (1) to weigh the evidence and (2) to supervise the police in their conduct of an investigation. This case assumes unusual proportions because at least a dozen other convictions are already backed up awaiting a decision here. My colleagues would substitute their determination as to what should be done for that of at least 144 jurors who had heard the evidence in the cases mentioned and who had found to their satisfaction, that the Government had proved guilt beyond a reasonable doubt. In terms of the first point, my colleagues sense" }, { "docid": "13556030", "title": "", "text": "neck.” But Policeman Machie denied that appellant made such a statement: “The Court: He did not say he might have held a knife to her; he told you he might have said he might cut her if she didn’t go with him; is that right? The Witness: Those were his words * Appellant denied both accounts of what he said to the police. He testified: “The officer asked me what did I say. The secretary was taking down what he asked me more or less and I said I didn’t say that, and she still took it down.” . Hopkins v. United States, 107 U.S.App. D.C. -, 275 F.2d 155; quoting Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41, and citing other cases. In several of the cases cited in Hopkins, as in the present case, the defendant’s guilt would have been clear beyond a reasonable doubt if the veracity of an essential witness had been unquestionable. Benton v. United States, 88 U.S.App.D.C. 158, 188 F.2d 625; Kelley v. United States, 90 U.S.App.D.C. 125, 194 F.2d 150; Wilson v. United States, 1959, 106 U.S.App.D.C. 226, 271 F.2d 492. Decisions sustaining particular verdicts are sometimes accompanied by dicta that all verdicts must be sustained. Decisions rejecting particular verdicts prove the contrary. So does the practice of directing verdicts. WILBUR K. MILLER, Circuit Judge (dissenting). Farrar was tried and found guilty by Judge Schweinhaut, sitting without a jury. The appellant first denied and then admitted having had intercourse with the complaining witness, but said she had submitted voluntarily. So the issue at the trial was whether the victim had consented. She testified Farrar met her on the street at night and, at what she thought was the point of a knife in her back, marched her to his apartment where, under threats of bodily injury, he forced her to yield to him. As soon as she escaped from the scene, the girl ran to a nearby fire house and reported the attack, whereupon the police were called. It was argued strongly that the evidence was insufficient to support" }, { "docid": "2846017", "title": "", "text": "own clothing, the absence of any weapon, and the fact that the Appellant later returned to the hospital parking lot to help her start her car. Indeed, like many records in rape cases, the evidence is not always clear-cut. Nevertheless, the evidence presented in the Complainant’s testimony was not in itself incredible as was that of the complaining witness in Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1960), a case upon which Appellant places great reliance. In denying the Government’s petition for rehearing en banc in Farrar and thereby preserving this court’s earlier reversal of a conviction for rape, then Chief Judge Prettyman explained that acquiescence may be deemed nonconsensual in the absence of force if the victim is put in genuine apprehension of death or bodily harm. The determinative factor in Farrar was that “[t]he complaining witness rested her claim of fear upon a simple physical fact — a knife.” Id. at 212, 275 F.2d at 876. “The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear.” Id. at 213, 275 F.2d at 877. When this court found it incredible that the complainant had been coerced by a knife for a two or three hour period and had “submitted” to multiple acts of intercourse, and yet never saw the knife, the conviction could not stand in the absence of any viable alternative cause for the prosecutrix’ “fear” of her attacker. Indeed, the sitting division in Farrar found that her participation in the acts of intercourse were not induced by threats or “by words of any sort.” Id. at 204, 275 F.2d at 868. In the instant case, the Complainant’s relation that she was “scared to death because I really thought he was going to kill me” was not based on a nondiscoverable weapon or any other theory of fear which was incredible on the basis of her own testimony. It was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas," }, { "docid": "2846015", "title": "", "text": "help her start it that afternoon, she had never been in his car and he had no contact with her. Appellant admitted having Complainant’s car keys at the time of his arrest but said that she had given them to him so that he could return to start her car. He also testified that he could not recall whether Complainant was wearing gloves that morning, and he had no recollection how her white gloves had come to be in his car at the time of his arrest. II As noted above, the focus of Appellant’s case on appeal is his assertion that the Government failed to establish a prima facie case of lack of consent by the complaining witness. As an alternative to this proposition, he also contends that even if the trial court did not err in failing to take the case from the jury and directing a verdict of acquittal, the evidence in its totality was clearly insufficient to sustain the jury’s verdict of guilty. Before the Appellant can effectively challenge the trial court’s decision to send this case to the jury, he must establish that at the point when the motion for acquittal was made the Government had not introduced such evidence that reasonable persons could find guilt beyond reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the jury to reach a verdict of guilt by the requisite standard. Crawford v. United States, 126 U.S.App. D.C. 156, 158, 375 F.2d 332, 334 (1967) (emphasis in original); accord, e. g., Thompson v. United States, 132 U.S.App. D.C. 38, 405 F.2d 1106 (1968); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). In challenging the validity of the trial court’s determination, Appellant presents a staccato list of points which are said to militate against a finding of non-consent. Among those offered are the Complainant’s failure to forcefully resist, her failure to scream out or attempt escape, the fact that she removed her" }, { "docid": "2846018", "title": "", "text": "no alternative cause for fear.” Id. at 213, 275 F.2d at 877. When this court found it incredible that the complainant had been coerced by a knife for a two or three hour period and had “submitted” to multiple acts of intercourse, and yet never saw the knife, the conviction could not stand in the absence of any viable alternative cause for the prosecutrix’ “fear” of her attacker. Indeed, the sitting division in Farrar found that her participation in the acts of intercourse were not induced by threats or “by words of any sort.” Id. at 204, 275 F.2d at 868. In the instant case, the Complainant’s relation that she was “scared to death because I really thought he was going to kill me” was not based on a nondiscoverable weapon or any other theory of fear which was incredible on the basis of her own testimony. It was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location, and told her it would be useless for her to scream because no one would hear. The Appellant was not unaware of complainant’s fright; she testified that he had “said that he knew I was scared because I was so nervous.” In these circumstances, this court’s observations in Ewing v. United States, 77 U.S.App. D.C. 14, 16, 135 F.2d 633, 635 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943) (emphasis added), are worth reiterating: There are cases, especially older ones from other jurisdictions, which seem to require resistance to the victim’s ultimate physical powers in order to sustain conviction for this crime. But the law is no longer in this last-ditch stage. Whatever it may have been in other times, it is generally settled now that consent is not shown when the evidence discloses resistance is overcome by threats which put the woman in fear of death or grave bodily harm, or by these combined with some degree of physical force. Therefore, despite Appellant’s" }, { "docid": "13556024", "title": "", "text": "EDGERTON, Circuit Judge. Appellant, charged with rape, waived a jury trial and was convicted by a judge. The complaining witness was an 18-year old girl to whom intercourse was not a new experience. Late at night appellant, a stranger to the girl, accosted her in a street, and they walked together two or three blocks to his room. They undressed and had intercourse. About 45 minutes later they had intercourse again. During the interval, he left the room and brought her a drink of water at her request and poured some whiskey. Finally she partly dressed, went to a bathroom, “turned both spigots on”, left the building, went to a fire station, and said she had been raped. Police were called and took her back to appellant’s room. He at first said he did not know her, but presently admitted he had intercourse with her. So much is undisputed. The girl testified at appellant’s trial that she walked with him to his room, and undressed, because he threatened to kill her if she refused to do so. But she did not testify that her taking part in intercourse was induced by those threats, or by words of any sort. She testified to the contrary. When she was asked, “how did you happen to have this second intercourse with Mr. Farrar?”, she replied: “He made me have the second the same as the first. Q. What did he say to you? A. He didn’t say anything. Every time he got ready to have inter course with me, he put the knife around my neck.” She testified that he had a knife in his hand, and constantly pressed it against her, all the time they were walking together through the streets, through the door into the house, and upstairs to his room, and that he had it in his hand much of the time she was in his room. Yet she repeatedly testified that she never saw it. There were lights in the streets. There was a light in the room. The girl’s eyes were not closed and she was “looking at" }, { "docid": "11794982", "title": "", "text": "arrested about two blocks from the scene of the crime, Calhoun was indeed wearing a fishnet shirt. The arresting officer’s attention was drawn to Calhoun just prior to the arrest because he was “trotting at a fair pace”, out of breath, and sweating profusely. Later, inspection revealed grass stains on his trouser knees. Analysis in the F.B.I. laboratory revealed seminal stains on Calhoun’s trousers, although these stains were of indeterminate age. Besides what has already been mentioned, Calhoun’s defense was one of alibi. His denial of being at the scene was supported by testimony from appellant Fields. The prosecutrix testified quite candidly that there was no apparent recognition between Fields and Calhoun during the commission of the crime. Calhoun attributed the grass stains on the knees of his trousers to his job as a caddy at a local country club. It was also brought out during the trial that the prosecutrix was or had been suffering from a venereal disease, which she admitted. Dispute arose whether or not her disease was in remission. With all of these facts before them, the jury convicted appellant Calhoun. We are now asked to decide whether or not the corroboration of identity was sufficient to enable a reasonable mind to fairly conclude guilt beyond a reasonable doubt. In order to do so we must weigh the evidence in this case against the measuring rod of Kid-well and Ewing and their progeny. Supporting his contention of insufficient corroboration, appellant cites the following cases: Franklin v. United States, 117 U.S.App.D.C. 331, 330 F.2d 205 (1964); Walker v. United States, 96 U.S.App.D.C. 148, 223 F.2d 613 (1955) ; Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954). Appellant also refers us to Roberts v. United States, 109 U.S.App.D.C. 75, 284 F.2d 209 (1960); Larkin v. United States, 108 U.S.App.D.C. 239, 281 F.2d 72 (1960); Farrar v. United States, 107 U.S.App.D.C. 204, 275 F.2d 868 (1959). We have carefully examined all of the cases cited to us by appellant and found them all to be outside of the KidwellEwing wake. Appellant’s view of the degree of" }, { "docid": "13556039", "title": "", "text": "credence to the complaining witness instead of to the appellant. He had observed the demeanor of the parties as they testified and was in a much better position than we are to form an opinion as to their credibility. In his brief oral opinion he said in part: “I will say this only: That I believe, on the fundamental issues in this case, the complaining witness did tell the truth and I believe that there is an abundance of evidence in the case which corroborates her testimony, including the testimony of the defendant himself. * * * I not only don’t have a reasonable doubt about the matter; I don’t have any doubt at all. The Court finds the defendant guilty as charged.” Thus the trial judge decided the case on the credibility issue; he chose to believe the girl instead of the appellant, and so had no doubt of the latter’s guilt. I suggest he decided correctly on the basis of the evidence he found worthy of belief. The majority say, however, that a reasonable mind must necessarily have had a reasonable doubt as to appellant’s guilt. Surely they do not intend to say Judge Schweinhaut was unreasonable in deciding as he did on the basis of the evidence which he believed. The majority statement must mean, then, that they believe Farrar’s testimony and that, giving credence to what he said, a reasonable doubt was inevitable. It follows they are reversing the trial judge’s decision as to the credibility of witnesses. But the question here is not what we think of the evidence as it appears on printed pages. The issue on this appeal is whether we can properly disturb the determination of guilt made by an experienced trial judge on evidence which, if believed, amply supports it, and which he found so completely convincing. I think it is thoroughly settled that we have no such authority. In Daniels v. Souders, 1952, 90 U.S.App.D.C. 298, 300, 195 F.2d 780, 781, this court said: “Appellant also contends that the evidence is not sufficient to support the finding that she was" }, { "docid": "13556040", "title": "", "text": "reasonable mind must necessarily have had a reasonable doubt as to appellant’s guilt. Surely they do not intend to say Judge Schweinhaut was unreasonable in deciding as he did on the basis of the evidence which he believed. The majority statement must mean, then, that they believe Farrar’s testimony and that, giving credence to what he said, a reasonable doubt was inevitable. It follows they are reversing the trial judge’s decision as to the credibility of witnesses. But the question here is not what we think of the evidence as it appears on printed pages. The issue on this appeal is whether we can properly disturb the determination of guilt made by an experienced trial judge on evidence which, if believed, amply supports it, and which he found so completely convincing. I think it is thoroughly settled that we have no such authority. In Daniels v. Souders, 1952, 90 U.S.App.D.C. 298, 300, 195 F.2d 780, 781, this court said: “Appellant also contends that the evidence is not sufficient to support the finding that she was guilty of adultery with appellee’s husband. The credibility of the testimony is within the province of the trial court who saw the witnesses and heard them speak. We cannot say that the record did not warrant the inferences and conclusions that were drawn.” The opinion of this court in Morfessis v. Morfessis, 1950, 87 U.S.App.D.C. 292, 184 F.2d 468, stated: “The findings of the District Court, sitting without a jury, ‘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.’ * As the trier of the facts, it is in the best position to consider the demeanor of the witnesses and to weigh their testimony. * -x- * >> '\"“Rule 52(a), Federal Rules of Civil Procedure.” Repeating what it had said in Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289, the Supreme Court said in Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37 S.Ct. 169, 170, 61 L.Ed. 356:" }, { "docid": "2846039", "title": "", "text": "influence on jurors in deciding whether to find guilt, but without the death sentence, or not guilty. One or more jurors, with his or her attitude about the crime of rape reinforced by the statutory provision for a death sentence, might have been so influenced. As stated by the Second Circuit in Wilkins, supra, 348 F.2d at 867, it is sufficient if there is “a reasonable possibility” of prejudice. For the court erroneously to give the jury a range of verdicts more severe than the law allows in the case on trial is for the court erroneously to influence the jury adversely to the accused. As a result the verdict rendered may be more severe than otherwise it would have been, even if not the most severe permitted by the erroneous instruction. After the hearing and decision of this case by a division of the court, and upon the filing of a petition for rehearing by the division, the case was sua sponte placed en bane, but without further argument or briefing. . On the return to the Hospital Appellant said that he would return to St. Elizabeths that afternoon to help her start her car but he thought she would “probably have policemen everywhere”; she replied that she would not. . At the time of his arrest, Appellant had Complainant’s car keys in his possession. The Complainant also identified as hers a pair of white gloves found in Appellant’s car at the time of his arrest. . In his closing argument, trial counsel for Appellant argued both the absence of any sexual encounter and the issue of non-consent : One more thing: I’m going to argue consent, and I’m going to argue consent because, of course, there is evidence of it, but I don’t concede one second that the act of intercourse took place. I want you to understand that. The defendant has this right. . Other facts which bore on the credibility of the complaining witness’ testimony in Farrar also distinguish it from this case. In Farrar the girl was accosted on a public street and walked two" } ]

[ { "docid": "18492398", "title": "", "text": "does not qualify as a “claim” dischargeable in the employee’s bankruptcy case since no expenditure of money is required to comply, and the employer is accordingly entitled to relief from the automatic stay to pursue state-court injunctive relief. See In re Udell, 18 F.3d 403 (7th Cir.1994); In re Hughes, 166 B.R. 103 (Bankr.S.D.Ohio 1994); Oseen v. Walker (In re Oseen), 133 B.R. 527 (Bankr.D.Idaho 1991). But See In re Kilpatrick, 160 B.R. 560 (Bankr.E.D.Mich. 1993) (relief from stay denied because, under Michigan law, money damages would be awarded for debtor’s breach of noncompete agreement and nondebtor holds dischargea-ble claim). All of these holdings arose in Chapter 13 cases, where the debtor’s postpetition earnings from personal services are property of the debtor’s estate. See § 1306(a)(2). (“Property of the estate includes ... earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed or converted to a case under chapter 7,11, or 12_”). The Seventh Circuit in Udell noted that a bankruptcy court in a Chapter 13 case, in deciding whether to lift the stay, should consider, inter alia, prejudice to the debtor’s estate and the employer’s probability of prevailing on the merits in the state-court litigation. See Udell, 18 F.3d at 410. No such concerns are present in a Chapter 7 ease, where the debtor’s postpetition earnings are not property of the estate. See § 541(a)(6) (Property of the estate does not include “earnings from services performed by an individual debtor after the commencement of the case.”). See May v. Charles Booher & Associates, Inc. (In re May), 141 B.R. 940 (Bankr.S.D.Ohio 1992) (Chapter 7 discharge no bar to employer pursuing injunction against debtor for future breaches of covenants not to compete). The question raised by the trustee and the debtor of whether there were fraudulent misrepresentations by Carbone which render the covenant unenforceable, is a matter of state law to be decided by the state court where an action is pending, and not by the bankruptcy court. This is so notwithstanding the trustee’s contention that the debtor’s estate holds" } ]

[ { "docid": "1122751", "title": "", "text": "is a “claim,” even if that right could also be enforced by means of an “equitable remedy.” See 124 Cong.Rec. 32,393 (1978) (“[I]n some States, a judgment for specific performance may be satisfied by an alternative right to payment in the event performance is refused; in that event, the creditor entitled to specific performance would have a ‘claim’ for purposes of a proceeding under title 11.” (quoted in Kovacs, 469 U.S. at 280, 105 S.Ct. at 708)). By rejecting the agreement, the Debtor committed a breach. 11 U.S.C. § 365(g). The question, then, is whether the Debtor’s breach of the covenant not to compete gave Pollard “a right to payment.” If it did, then Pollard holds a claim, and is entitled to specific performance of the covenant only if its claim was not discharged. See May, 141 B.R. at 942; In re Cox, 53 B.R. 829, 832, 13 C.B.C.2d 772 (Bankr.M.D.Fla.1985). Before considering whether Pollard has a claim, however, two preliminary issues must be addressed. The first is whether I must look to state law or federal law in determining if a right to payment exists. It is well established that the existence of a claim in bankruptcy is generally determined by state law. See Grogan v. Garner, 498 U.S. 279, 283, 111 S.Ct. 654, 657, 112 L.Ed.2d 755, 763 (1991) (“The validity of a creditor’s claim is determined by rules of state law.”); Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (“Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.”); In re Udell, 149 B.R. 898, 903 (Bankr.N.D.Ind.1992), rev’d on other grounds, 149 B.R. 908 (N.D.Ind.1993). As suggested in Butner, an exception to this general rule may exist if “some federal interest [so] requires.” Professor Westbrook and others would presumably argue that just such an “interest” is evidenced by § 502(c), which states that “[t]here shall be estimated for purpose of" }, { "docid": "18543229", "title": "", "text": "May v. Charles Booher & Assocs., Inc. (In re May), 141 B.R. 940 (Bankr.S.D.Ohio 1992); In re Peltz, 55 B.R. 336 (Bankr.M.D.Fla.1985) (same). . 160 B.R. 560 (Bankr.E.D.Mich.1993). . Fellerman and Cohen Realty Corp. v. Clinical Plus Inc. (In re Hirschhom), 156 B.R. 379 (Bankr.E.D.N.Y.1993); Thomas v. Herzog (In re Thomas), 133 B.R. 92 (Bankr.N.D.Ohio 1991); In re Don & Lin Trucking Co., Inc., 110 B.R. 562, 20 BCD 58 (Bankr.N.D.Ala.1990); In re Noco, Inc., lb B.R. 839 (Bankr.N.D.Fla.1987); In re Carrere, 64 B.R. 156, 14 BCD 977 (Bankr.C.D.Cal.1986). . 64 B.R. 156, 14 BCD 977. . E.g., In re Printronics, Inc., 189 B.R. 995, 28 BCD 333 (Bankr.N.D.Fla.1995); Oseen v. Walker (In re Oseen), 133 B.R. 527 (Bankr.D.Idaho 1991); In re Cox, 53 B.R. 829 (Bankr.M.D.Fla.1985); see also Sheerin v. Davis (In re Davis), 3 F.3d 113, 117, 24 BCD 1108, 1110 (5th Cir.1993) (equitable remedy of resulting trust not a claim because state law “does not view payment of money as alternative to the maintenance of the equitable owner’s interest in the property,” even though there may be a right to damages). . Property and contract rights implicated in bankruptcy disputes are determined in accordance with state law. E.g., Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Ralar Distrib., Inc. v. Rubbermaid, Inc. (In re Ralar Distrib., Inc.), 4 F.3d 62, 67-68 (1st Cir.1993). . Spencer W. Symons, 5 Pomeroy’s Equity Jurisprudence § 934(b) (5th ed. 1941). . Restatement (Second) of Contracts § 359 (1981); Walter H.E. Jaeger, 11 Williston On Contracts § 1418 (3d ed. 1968); Fiss, supra note 5, at 59-79. . E.g., Arthur L. Corbin, 5A Corbin On Contracts § 1142 (1964); Restatement (Second) Of Contracts § 360 (1981). . National Marking Mach. Co. v. Triumph Mfg. Co., 13 F.2d 6, 9 (8th Cir.1926); see also, e.g., Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir.1991); Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33, 40 (8th Cir.1975) (quoting National Marking Machine); ABA Distrib., Inc. v. Adolph Coors Co., 542 F.Supp. 1272, 1293 (W.D.Mo.1982). . Walla" }, { "docid": "18543228", "title": "", "text": "then whether Maids’ injunctive rights concerning the breach constitutes a claim. If the covenant is not an executory contract, the question is the same — whether Maids' injunctive rights are a claim. . 11 U.S.C. § 524(a) (1988). . 11 U.S.C. § 101(12) (1988 & Supp. V 1993). . 11 U.S.C. § 101(5) (1988 and Supp. V 1993). . Id. . 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649, 12 BCD 541 (1985). . Id. at 280-83, 105 S.Ct. at 708-10, 12 BCD at 544-45. . Id. at 283, 105 S.Ct. at 709-10, 12 BCD at 545. . Of these phrases, only the meaning of “breach of performance” was contested. The Court held this phrase encompassed breach of an obligation imposed by law as well as by private contract. Id. at 279, 105 S.Ct. at 707-08, 12 BCD at 543. . Id. at 281, 105 S.Ct. at 708-09, 12 BCD at 544. . E.g., R.J. Carbone Co. v. Nyren (In re Nyren), 187 B.R. 424 (Bankr.D.Conn.1995); In re Hughes, 166 B.R. 103 (Bankr.S.D.Ohio 1994); May v. Charles Booher & Assocs., Inc. (In re May), 141 B.R. 940 (Bankr.S.D.Ohio 1992); In re Peltz, 55 B.R. 336 (Bankr.M.D.Fla.1985) (same). . 160 B.R. 560 (Bankr.E.D.Mich.1993). . Fellerman and Cohen Realty Corp. v. Clinical Plus Inc. (In re Hirschhom), 156 B.R. 379 (Bankr.E.D.N.Y.1993); Thomas v. Herzog (In re Thomas), 133 B.R. 92 (Bankr.N.D.Ohio 1991); In re Don & Lin Trucking Co., Inc., 110 B.R. 562, 20 BCD 58 (Bankr.N.D.Ala.1990); In re Noco, Inc., lb B.R. 839 (Bankr.N.D.Fla.1987); In re Carrere, 64 B.R. 156, 14 BCD 977 (Bankr.C.D.Cal.1986). . 64 B.R. 156, 14 BCD 977. . E.g., In re Printronics, Inc., 189 B.R. 995, 28 BCD 333 (Bankr.N.D.Fla.1995); Oseen v. Walker (In re Oseen), 133 B.R. 527 (Bankr.D.Idaho 1991); In re Cox, 53 B.R. 829 (Bankr.M.D.Fla.1985); see also Sheerin v. Davis (In re Davis), 3 F.3d 113, 117, 24 BCD 1108, 1110 (5th Cir.1993) (equitable remedy of resulting trust not a claim because state law “does not view payment of money as alternative to the maintenance of the equitable owner’s interest in the property,”" }, { "docid": "1146131", "title": "", "text": "rise to payment, and thus, it has a right to relief from the stay. However, Carpetland’s argument ignores the actual language employed by Carpetland in its contract with Udell. The language of that restrictive covenant plainly provides: “In the event of Udell's actual or threatened breach ... Carpetland shall be entitled to an injunction ... as well as ... stipulated damages in the sum of $25,000.00.” (emphasis added). The “threatened breach” mentioned in the contract can be interpreted only as a reference to future violations. Thus, by this contract, Carpetland and Udell have agreed that in the event of past or future violations of the. covenant (“Udell’s actual or threatened breach”), Carpetland may pursue an injunction “as well as” money damages stipulated at $25,000. As a result, the usual reason for granting such injunctions, which is, that money damages for such future violations are inadequate because of the inability to prove the extent of damages resulting from future breach of the restrictive employment covenants, does not apply. Therefore, the court finds that Udell’s breach does give rise to a right to payment, and accordingly, is a claim, as defined at 11 USC § 101(5). The court is aware that bankruptcy courts applying the law of other states have held that when covenants not to compete are breached, employers may normally seek effective remedies only through in-junctive relief; and therefore, when the state courts in the related litigation found that the employers were entitled to injunctions, the injunctions were not “claims” within the meaning of the Bankruptcy Code. See In re: Oseen, 133 B.R. 527, 531 (Bankr.D.Idaho 1991); In re: Cox, 53 B.R. 829, 832 (Bankr.M.D.Fla.1985); and In re: Cooper, 47 B.R. 842 (W.D.Mo.1985). However, none of those cases involved a stipulated damages clause which addressed past as well as future breach (“actual or threatened breach”), such as was fashioned by Carpetland in this case. The court in In re: Oseen specifically relied upon the liquidated damages clause used in that case as being “not an effective remedy for any future breach.” Id., 133 B.R. at 531. Furthermore, in In re:" }, { "docid": "1122750", "title": "", "text": "at 911; Silk Plants, Etc. Franchise Systems v. Register, 100 B.R. 360, 362-63 (M.D.Tenn.1989); In re May, 141 B.R. 940, 942 (Bankr.S.D.Ohio 1992); In re Oseen, 133 B.R. 627, 530 (Bankr.D.Idaho 1991); cf. Ohio v. Kovacs, 469 U.S. 274, 278-83, 106 S.Ct. 705, 707-10, 83 L.Ed.2d 649 (1985) (court order requiring the debtor to clean up polluted property gave rise to a claim dischargeable in bankruptcy). The real issue here is whether Pollard’s right to enforce the covenant is tantamount to a claim. A “claim” is defined under the Code as a: (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, undisputed, secured, or unsecured. 11 U.S.C. § 101(5). Thus any right which can be reduced to monetary damages is a “claim,” even if that right could also be enforced by means of an “equitable remedy.” See 124 Cong.Rec. 32,393 (1978) (“[I]n some States, a judgment for specific performance may be satisfied by an alternative right to payment in the event performance is refused; in that event, the creditor entitled to specific performance would have a ‘claim’ for purposes of a proceeding under title 11.” (quoted in Kovacs, 469 U.S. at 280, 105 S.Ct. at 708)). By rejecting the agreement, the Debtor committed a breach. 11 U.S.C. § 365(g). The question, then, is whether the Debtor’s breach of the covenant not to compete gave Pollard “a right to payment.” If it did, then Pollard holds a claim, and is entitled to specific performance of the covenant only if its claim was not discharged. See May, 141 B.R. at 942; In re Cox, 53 B.R. 829, 832, 13 C.B.C.2d 772 (Bankr.M.D.Fla.1985). Before considering whether Pollard has a claim, however, two preliminary issues must be addressed. The first is whether I must look to state law" }, { "docid": "1303964", "title": "", "text": "obligations under a covenant not to compete, the vast majority of cases, relying upon language in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985), determine that these obligations are not dis-chargeable. See In re Printronics, Inc., 189 B.R. 995 (Bankr.N.D.Fla.1995); In re Oseen, 133 B.R. 527 (Bankr.D.Idaho 1991); see also Matter of Udell, 18 F.3d 403 (7th Cir.1994); In re Hughes, 166 B.R. 103 (Bankr.S.D.Ohio 1994); In re Thomas, 133 B.R. 92 (Bankr.N.D.Ohio 1991). But see In re Ward, 194 B.R. 703 (Bankr.D.Mass. 1996); In re Kilpatrick, 160 B.R. 560 (Bankr.E.D.Mich.1993). This Court agrees with the-majority of the cases and holds that the covenant not to compete clause in the agreement is not a claim subject to discharge in this bankruptcy case. Based upon the nondischargeability of this covenant the movants request relief from stay in order to pursue their state court remedies to enforce it. Inasmuch as cause has been shown, 11 U.S.C. § 362(d)(1), and there being no evidence in rebuttal to this showing, the relief from stay is merited. Accordingly, ORDERED that the “Motion for Partial Relief from the Automatic Stay” filed on April 19,1999, is Granted. IT IS SO ORDERED. . The debtor raises other, state law issues in his response. These are all matters which can and should be determined by the Chancellor in the state court action." }, { "docid": "3837725", "title": "", "text": "is prohibited, but affirmative expenditure. Therefore, the “no compete” obligations were not “debts” which were subject to the discharge. The courts in Peltz and Cooper relied upon a similar analysis to conclude that injunctions to enforce “no compete” clauses are not “debts” which are discharged under 11 U.S.C. § 727(b). 55 B.R. at 336 and 47 B.R. at 842. Any damages sought for a breach of “no compete” clause in an employment contract entered into prepetition would, however, presumably be discharged under 11 U.S.C. § 727(b). B. Application to the Facts Before the Court The substance of what Booher seeks is an injunction against May to prevent any future breaches of the “no compete” clauses contained within the employment agreements and damages for any postpetition breaches. Booher does not seek monetary damages for prepetition breaches. Based upon the reasoning of Kovacs and Cox, the Court finds that Booher should be permitted to pursue an injunction against May for future breaches of the covenants not to compete. This conclusion by the Court should not be construed by any party as a conclusion that the employment agreements between May and Booher are enforceable under applicable state law or that any breaches of those agreements occurred. The Court believes that the state courts of Ohio are the more appropriate forum to interpret the employment agreements and determine if breaches occurred. See, Cooper, 47 B.R. at 845. If, however, the state court finds that Booher may be compensated adequately with monetary payment without the issuance of an injunction, then that obligation for monetary payment would be a “debt” within the meaning of 11 U.S.C. § 727(b) which would be subject to the discharge provisions of Title 11, U.S.C. See, Kovacs, 105 S.Ct. 705 and Cox, 53 B.R. 829. Booher also contends that it is entitled to pursue an action against May for monetary damages resulting from postpetition breaches of the “no compete” clauses. Section 101(5)(A) of Title 11, U.S.C. provides the starting point for that analysis. If the “right to payment” arose prepetition, there is a “claim” within the meaning of 11 U.S.C. §" }, { "docid": "1122749", "title": "", "text": "is tantamount to rescission. See In re Udell, 149 B.R. 908, 911 (N.D.Ind.1993); In re Drexel Burnham Lambert Group, 138 B.R. 687, 708-09, 26 C.B.C.2d 1128 (Bankr.S.D.N.Y.1992). 3. AVAILABILITY OF MONEY DAMAGES The Debtor’s third argument is that Pollard’s rights under the covenant and injunction constitute a “claim” under 11 U.S.C. § 101(5). That being the case, the Debtor contended, Pollard cannot obtain specific per formance of either the covenant or the injunction, but must instead accept the same treatment of its claim as any other unsecured creditor — namely, payment under the plan on a pro rata basis, with any unpaid balance being discharged. Because the analysis for each is somewhat different, I will first consider this argument as it relates to the covenant, and then discuss the injunction. A. The covenant not to compete The ease law clearly supports the Debtor’s contention that, if a nondebtor’s rights under a noncompete agreement give rise to a claim, then the nondebtor is not entitled to specific performance of the agreement. See, e.g., Udell, 149 B.R. at 911; Silk Plants, Etc. Franchise Systems v. Register, 100 B.R. 360, 362-63 (M.D.Tenn.1989); In re May, 141 B.R. 940, 942 (Bankr.S.D.Ohio 1992); In re Oseen, 133 B.R. 627, 530 (Bankr.D.Idaho 1991); cf. Ohio v. Kovacs, 469 U.S. 274, 278-83, 106 S.Ct. 705, 707-10, 83 L.Ed.2d 649 (1985) (court order requiring the debtor to clean up polluted property gave rise to a claim dischargeable in bankruptcy). The real issue here is whether Pollard’s right to enforce the covenant is tantamount to a claim. A “claim” is defined under the Code as a: (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, undisputed, secured, or unsecured. 11 U.S.C. § 101(5). Thus any right which can be reduced to monetary damages" }, { "docid": "18641120", "title": "", "text": "because the breach of the obligation has in reality given rise to a right to payment. 11 U.S.C. § 101(4)(B). They rely on In re Robinson, 46 B.R. 136 (Bankr.M.D.Fla.), rev’d on other grounds, 55 B.R. 355 (M.D.Fla.1985). In that case, under facts very similar to those of the case at bar, the Bankruptcy Court held that a judgment entered against a Chapter 7 debtor requiring him to restore marshland was discharged in bankruptcy. Id. at 138-39. The court reasoned that even though the duty to restore the marshland was facially nonmonetary, the debtor would be required to spend money in order to restore the marshland and that therefore the United States had a right to payment. Id. at 139. The court acknowledged that in Robinson, unlike in Kovacs, the obligation had not “been effectively reduced to a money judgment.” Id. at 138-39. However, the court reasoned that “Congress intended a broadly inclusive definition of ‘claim,’ ” and concluded that “extension [of Kovacs ] will allow greater fidelity to the principles expressed by the Supreme Court as we understand them, than would finding the factual difference to require a legal distinction.” Id. We acknowledge the limited character of the Kovacs holding. It is clear, however, that the defendant does not have the physical capacity to reclaim the mine site himself, and that he would have to hire others to perform the work for him. This would require the expenditure of money. Thus, although the terms of the injunction would not require the payment of money, to the extent that the injunction were to be effective, it would. The injunction could only be enforced by contempt and then only if Lueking sometime in the future has funds either from future earnings, inheritance or gifts, etc. To hold him in contempt a court would have to find that he had the ability to pay others to perform the reclamation work. To the extent, therefore, that the injunction would have purpose or value it would require the payment of money. Thus, when we look at the substance of what the plaintiff seeks, rather" }, { "docid": "6075659", "title": "", "text": "(citing Kovacs at 284, 105 S.Ct. at 710). In the instant case, the injunctive relief that KKC would seek, namely to enjoin Printron-ics from competing, is such a prohibitory injunction. While Kovacs is distinguishable on its facts, it is, nevertheless, useful for this analysis. The injunction which the Kovacs Court held was a claim appears in substance more analogous to the specific performance example offered by the sponsor of the Bankruptcy Reform Act. The sponsor of the Bankruptcy Reform Act stated that: “[i]n some States, [in the event performance is refused,] a judgment for specific performance may be satisfied by an alternative right to payment ...; in that event, the creditor entitled to specific performance would have a “claim”....” Id. at 407 (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. (1977), reprinted in, 1978 U.S.C.C.A.N. 5963, 6437 (remarks of Rep. Edwards)). Thus, when state law permits a right to payment as an alternative to an equitable remedy, a claim exists which is dischargeable in bankruptcy. Id. Because the injunction which Kovacs violated, and which the receiver remedied, did give rise to a right to payment under Indiana law, it was a claim, capable of being discharged. The same cannot be said of the remedies for violating a covenant not to compete. In situations involving covenants not to compete, an injunction is not necessarily reducible to monetary damages such as in Kovacs. A prohibitory injunction, in which a party is ordered not to act, is the prevalent method of enforcement. Because of the very nature of the relief, these injunctions are only granted when irreparable harm can occur. See In re Oseen, 133 B.R. 527, 531 (Bankr.D.Idaho 1991). In order to determine whether harm would be irreparable, courts consider whether damages are ascertainable. See Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735, 738 (Fla.3d D.C.A.1982). If damages are not ascertainable, the harm is irreparable and an injunction is the appropriate remedy. Id. In a situation where a party violates its noncompete agreement, and in which the party within a franchise agreement had agreed that such a violation would result in" }, { "docid": "18650180", "title": "", "text": "inter alia, ‘broad,’ Ohio v. Kovacs, 469 U.S. 274 [282-83], 105 S.Ct. 705, 709, 83 L.Ed.2d 649 (1985); ... ‘could not be broader,’ In re Thomas, 12 B.R. 432, 433 (Bankr.S.D. Iowa 1981); ‘broadest possible,’ Kallen v. Litas, 47 B.R. 977, 982 (N.D.Ill.1985) ... ‘all-encompassing,’ In re Baldwin-United Corp., 48 B.R: 901, 903 (Bankr.S. D.Ohio 1985) ... and ‘sufficiently broad to cover any possible obligation,’ In re Smith Jones, Inc., 26 B.R. 289, 293 (Bankr.D.Minn.1982). In re Edge, 60 B.R. at 693-94, citing Robinson v. McGuigan, 776 F.2d 30, 34-35 (2d Cir.1985), reversed on other grounds, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). The few cases we have found involving the issue of when claims for payment based on contracts arose also support this holding. In In re Peltz, 55 B.R. 336 (Bankr.M.D.Fla.1985), the court held that the creditor-employer’s claim for payment based upon the debtor-employee’s postpetition breach of a covenant not to compete which had been entered into four years prior to the debtor-employee’s filing of his petition in bankruptcy arose prepetition. The debtor-employee terminated has employment eight days after filing his petition in bankruptcy. The court stated: There is no dispute that oh the day relief was entered in this bankruptcy proceeding that [the employer-creditor’s] claim could be characterized as unliquidated, contingent, unmatured and disputed.... As a general rule when parties agree in advance that one party will pay the other party liquidated damages upon the occurrence of some certain event, ‘. there exists a right to payment, albeit contingent, upon the signing of the agreement.’ [Matter of M. Frenville Co., 744 F.2d 332, 336 (3d Cir.1984)]. Id. at 338. Peltz is clearly quite similar to this case. In Peltz, the creditor could not have calculated what his damages would be, nor was he aware he had any damages prior to the date of the petition. Nevertheless, his claim, for bankruptcy purposes, arose prior to the date of the petition at the time of contracting. Travelers’ claim, therefore, also arose at the time of the contract, despite Travelers’ inability at that time to calculate the" }, { "docid": "3837724", "title": "", "text": "the debtor’s employment contract. Cox held that if the state court determined that the debtor had breached the “no compete” covenants, it must also further determine whether the employer’s resulting injury could be adequately compensated by monetary damages. Cox, 53 B.R. at 832. If monetary damages were found to be adequate, “then this monetary award would be a claim within the meaning of § 101(4)(B) [§ 101(5)(B) ] which would be discharged under § 727(b).” Cox, 53 B.R. at 832. If, however, the state court determined that the employer was entitled to an injunction, “then this relief would not be a ‘claim’ ”. Cox, 53 B.R. at 832. Thus, the court in Cox granted the employer limited relief from the discharge injunction to pursue an injunction against the debtor. The court relied upon the reason ing of Kovacs, but distinguished the result. Although a debtor’s postpetition earnings may be affected by decreased earnings potential if the injunction is granted, no affirmative expenditure of money by the debtor would be required. It is not impact that is prohibited, but affirmative expenditure. Therefore, the “no compete” obligations were not “debts” which were subject to the discharge. The courts in Peltz and Cooper relied upon a similar analysis to conclude that injunctions to enforce “no compete” clauses are not “debts” which are discharged under 11 U.S.C. § 727(b). 55 B.R. at 336 and 47 B.R. at 842. Any damages sought for a breach of “no compete” clause in an employment contract entered into prepetition would, however, presumably be discharged under 11 U.S.C. § 727(b). B. Application to the Facts Before the Court The substance of what Booher seeks is an injunction against May to prevent any future breaches of the “no compete” clauses contained within the employment agreements and damages for any postpetition breaches. Booher does not seek monetary damages for prepetition breaches. Based upon the reasoning of Kovacs and Cox, the Court finds that Booher should be permitted to pursue an injunction against May for future breaches of the covenants not to compete. This conclusion by the Court should not be construed" }, { "docid": "3844657", "title": "", "text": "Agreement provided for liquidated damages of one hundred dollars per day in addition to any other remedy existing at law or in equity. Eight days after filing in this Court, debtor terminated his employment with Ap-person. Apperson then filed suit in the Circuit Court for Duval County, Florida, asserting a post-petition breach of the covenant not to compete and seeking damages or injunctive relief. Florida law provides for either injunctive relief or monetary damages to remedy a breach of a covenant not to compete with injunctive relief being the usual remedy. See Brannon v. Auto Center Manufacturing Co., 393 So.2d 75 (Fla. 5th DCA 1981). Whether these remedies can be discharged under the Bankruptcy Code turns on the definition of “claim” in 11 U.S.C. § 101(4). Any liability on a “claim” which arose prior to the entry of an Order for Relief in a Chapter 7 proceeding can be discharged pursuant to 11 U.S.C. § 727(b). Injunctive relief constitutes a claim under § 101(4)(B) if the injunction gives rise to a right to payment. This Court has previously ruled that the injunc-tive relief sought from a breach of a covenant not to compete is not a claim under 11 U.S.C. § 101(4)(B) and cannot be discharged under 11 U.S.C. § 727(b). In re Cox, 53 B.R. 829 (Bkrtcy, M.D.Fla.1985); see also In re Cooper, 47 B.R. 842, 12 BCD 1135 (Bkrtcy, W.D.Mo.1985). Injunctive relief would prohibit the debtor from soliciting Apperson’s customers. It would not require an expenditure of money, therefore, this equitable relief would not give rise to a right to payment. Accordingly, Apperson should be granted limited relief from the discharge injunction to pursue injunctive relief in the state court suit. The contractual obligation to refrain from solicitation of customers should be protected. A bankruptcy filing should not alter this right. The undecided issue is whether the damages sought by Apperson for debtor’s post-petition breach of the covenant not to compete constitutes a “claim” which is discharged under 11 U.S.C. § 727(b). In Cox, this Court decided that monetary damages sought to remedy a breach of a covenant" }, { "docid": "1303963", "title": "", "text": "seek relief from stay in order to pursue their state law remedies as well as enforcement of the covenant not to compete. They do not seek monetary damages in the state court action but seek only to have the covenant not to compete enforced. The debtor asserts that the covenant was discharged in the bankruptcy. Under the Bankruptcy Code, entry of the discharge “discharges the debtor from all debts that arose before the date of the order for relief under this chapter....” 11 U.S.C. § 727(b). The discharge releases the debtor only as to a liability on a “debt,” which is a “liability on a claim.” 11 U.S.C. § 101. A claim includes the 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, undisputed, secured, or unsecured. 11 U.S.C. § 101(5). Although the case authority is divided ás to whether this statute permits the discharge of the obligations under a covenant not to compete, the vast majority of cases, relying upon language in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985), determine that these obligations are not dis-chargeable. See In re Printronics, Inc., 189 B.R. 995 (Bankr.N.D.Fla.1995); In re Oseen, 133 B.R. 527 (Bankr.D.Idaho 1991); see also Matter of Udell, 18 F.3d 403 (7th Cir.1994); In re Hughes, 166 B.R. 103 (Bankr.S.D.Ohio 1994); In re Thomas, 133 B.R. 92 (Bankr.N.D.Ohio 1991). But see In re Ward, 194 B.R. 703 (Bankr.D.Mass. 1996); In re Kilpatrick, 160 B.R. 560 (Bankr.E.D.Mich.1993). This Court agrees with the-majority of the cases and holds that the covenant not to compete clause in the agreement is not a claim subject to discharge in this bankruptcy case. Based upon the nondischargeability of this covenant the movants request relief from stay in order to pursue their state court remedies to enforce it. Inasmuch as cause has been shown, 11 U.S.C. § 362(d)(1), and there being no evidence in rebuttal to this showing, the relief from stay" }, { "docid": "3837722", "title": "", "text": "must expend money to comply with an injunction, the obligation arising under the injunction is a “debt” which is discharged under 11 U.S.C. § 727(b) unless a specific provision of 11 U.S.C. § 523(a) excepts that obligation from discharge for some other reason. As further explained by another court, “although the terms of the injunction would not require the payment of money, to the extent that the injunction were to be effective, it would. Thus, when we look at the substance of what the plaintiff seeks, rather than the form of the relief sought, we see that the plaintiff is really seeking payment.” United States v. Whizco, Inc., 841 F.2d 147, 150 (6th Cir.1988). Thus, simply finding an affirmative duty to perform an act does not give rise to a nondischargeable obligation. Rather, the analysis should focus on the substance of the affirmative duty. If an expenditure of money is required to perform the obligation, then the affirmative duty gives rise to a “claim” and, thus, the underlying liability may be subject to the discharge issued pursuant to 11 U.S.C. § 727(b). If no other provision of the Bankruptcy Code excepts this “debt” from the operation of the discharge, it will be within the scope of the discharge. On the other hand, if no expenditure of money is required to comply with the affirmative duty under the injunction, then there may not be a “debt” in the bankruptcy context. If there is no “debt,” discharge of that underlying obligation will not occur. Several courts have reached this conclusion by applying the rationale of the Kovacs decision to employment contracts which contain “no compete” clauses. See, In re Cox, 53 B.R. 829 (Bankr.M.D.Fla.1985); In re Peltz, 55 B.R. 336 (Bankr.M.D.Fla.1985) and Carstens Health Industries v. Cooper (In re Cooper), 47 B.R. 842 (Bankr.W.D.Mo.1985). The Cox decision was based upon facts which are similar to the facts presently before this Court. A previous employer of the debtor sought relief from the discharge injunction of 11 U.S.C. § 524 to proceed with a state court action against the debtor for alleged breaches of" }, { "docid": "18517734", "title": "", "text": "NCA. Yet, the NCA expired in mid-1993, less than one year after Andrews filed his Chapter VII petition. He was free to re-enter the business after that time. Moreover, the NCA left Andrews free to pursue a fresh start in any area other than ready-mix concrete. Significantly, Andrews had previously been involved in the real estate development business. Although it is unclear whether he maintained this business after filing his bankruptcy petition, there is no evidence that he could not have done so in order to obtain funds for his fresh start. . As the dissenting opinion correctly notes, the terse reference to this issue in Matter of Walden, 12 F.3d 445 (5th Cir.1994), is dictum. . See, e.g., In re McDaniel, 141 B.R. 438, 440 (Bankr.N.D.Fla.1992) (finding payments to former employee in exchange for non-competition agreement not made for services performed and thus not excluded from estate under § 541(a)(6)); In re Prince, 127 B.R. at 192 (holding consideration for covenant not to compete contained in purchase agreement for sale of business not tantamount to \"earnings from services perforated\" post-petition); In re Bluman, 125 B.R. 359, 363 (Bankr.E.D.N.Y.1991) (same). . Lubrizol involved a licensing agreement, not a non-competition covenant. See Lubrizol, 756 F.2d at 1045. Significant authority holds that an obligation to refrain from competition does not render a contract executory for the purposes of § 365. See, e.g., In re Hughes, 166 B.R. 103, 105 (Bankr.S.D.Ohio 1994); In re Paveglio, 1995 WL 465339 at *5 (Bankr.M.D.Pa.1993); In re Drake, 136 B.R. 325, 327-28 (Bankr.D.Mass.1992); In re Oseen, 133 B.R. 527, 529 (Bankr.D.Idaho 1991); In re Bluman, 125 B.R. at 362; In re Cutters, 104 B.R. 886, 890 (Bankr.M.D.Tenn. 1989). Notably, a number of these decisions came in jurisdictions that had adopted the same definition of executory contracts under § 365 that was adopted by this circuit in Lubrizol. See In re Paveglio, 1995 WL 465339 at *5; In re Oseen, 133 B.R. at 529; In re Bluman, 125 B.R. at 362; In re Cutters, 104 B.R. at 890. . It is principally here that we part company from" }, { "docid": "3837723", "title": "", "text": "issued pursuant to 11 U.S.C. § 727(b). If no other provision of the Bankruptcy Code excepts this “debt” from the operation of the discharge, it will be within the scope of the discharge. On the other hand, if no expenditure of money is required to comply with the affirmative duty under the injunction, then there may not be a “debt” in the bankruptcy context. If there is no “debt,” discharge of that underlying obligation will not occur. Several courts have reached this conclusion by applying the rationale of the Kovacs decision to employment contracts which contain “no compete” clauses. See, In re Cox, 53 B.R. 829 (Bankr.M.D.Fla.1985); In re Peltz, 55 B.R. 336 (Bankr.M.D.Fla.1985) and Carstens Health Industries v. Cooper (In re Cooper), 47 B.R. 842 (Bankr.W.D.Mo.1985). The Cox decision was based upon facts which are similar to the facts presently before this Court. A previous employer of the debtor sought relief from the discharge injunction of 11 U.S.C. § 524 to proceed with a state court action against the debtor for alleged breaches of the debtor’s employment contract. Cox held that if the state court determined that the debtor had breached the “no compete” covenants, it must also further determine whether the employer’s resulting injury could be adequately compensated by monetary damages. Cox, 53 B.R. at 832. If monetary damages were found to be adequate, “then this monetary award would be a claim within the meaning of § 101(4)(B) [§ 101(5)(B) ] which would be discharged under § 727(b).” Cox, 53 B.R. at 832. If, however, the state court determined that the employer was entitled to an injunction, “then this relief would not be a ‘claim’ ”. Cox, 53 B.R. at 832. Thus, the court in Cox granted the employer limited relief from the discharge injunction to pursue an injunction against the debtor. The court relied upon the reason ing of Kovacs, but distinguished the result. Although a debtor’s postpetition earnings may be affected by decreased earnings potential if the injunction is granted, no affirmative expenditure of money by the debtor would be required. It is not impact that" }, { "docid": "1146132", "title": "", "text": "give rise to a right to payment, and accordingly, is a claim, as defined at 11 USC § 101(5). The court is aware that bankruptcy courts applying the law of other states have held that when covenants not to compete are breached, employers may normally seek effective remedies only through in-junctive relief; and therefore, when the state courts in the related litigation found that the employers were entitled to injunctions, the injunctions were not “claims” within the meaning of the Bankruptcy Code. See In re: Oseen, 133 B.R. 527, 531 (Bankr.D.Idaho 1991); In re: Cox, 53 B.R. 829, 832 (Bankr.M.D.Fla.1985); and In re: Cooper, 47 B.R. 842 (W.D.Mo.1985). However, none of those cases involved a stipulated damages clause which addressed past as well as future breach (“actual or threatened breach”), such as was fashioned by Carpetland in this case. The court in In re: Oseen specifically relied upon the liquidated damages clause used in that case as being “not an effective remedy for any future breach.” Id., 133 B.R. at 531. Furthermore, in In re: Cox, 53 B.R. 829, and In re: Cooper, 47 B.R. 842, the cases apparently did not involve liquidated damages clauses at all. Therefore, those three cases are sufficiently distinct from the instant case so as to not create conflict. CONCLUSION For the foregoing reasons, the bankruptcy court’s Order and decision is REVERSED, and the matter is REMANDED to the bankruptcy court for proceedings consistent with this order. . \"Chapter 13 of the Bankruptcy Code provides a reorganization remedy for consumer debtors and proprietors with reasonably small debts.\" Johnson v. Home State Bank, — U.S.-, 111 S.Ct. 2150, 2153, 115 L.Ed.2d 66 (1991). . The automatic stay applies to restrain the commencement or continuation of any proceeding which was or could have been brought against the debtor prior to the commencement of the bankruptcy action, and applies to restrain the enforcement of a judgment which was obtained against the debtor prior to the commencement of the bankruptcy action. 11 USC § 362(a). . The Bankruptcy Code permits the court to grant a party in interest relief" }, { "docid": "3844658", "title": "", "text": "Court has previously ruled that the injunc-tive relief sought from a breach of a covenant not to compete is not a claim under 11 U.S.C. § 101(4)(B) and cannot be discharged under 11 U.S.C. § 727(b). In re Cox, 53 B.R. 829 (Bkrtcy, M.D.Fla.1985); see also In re Cooper, 47 B.R. 842, 12 BCD 1135 (Bkrtcy, W.D.Mo.1985). Injunctive relief would prohibit the debtor from soliciting Apperson’s customers. It would not require an expenditure of money, therefore, this equitable relief would not give rise to a right to payment. Accordingly, Apperson should be granted limited relief from the discharge injunction to pursue injunctive relief in the state court suit. The contractual obligation to refrain from solicitation of customers should be protected. A bankruptcy filing should not alter this right. The undecided issue is whether the damages sought by Apperson for debtor’s post-petition breach of the covenant not to compete constitutes a “claim” which is discharged under 11 U.S.C. § 727(b). In Cox, this Court decided that monetary damages sought to remedy a breach of a covenant not to compete constitute a “claim” within the meaning of 11 U.S.C. § 101(4)(A) that is clearly discharged if the claim arose pre-pe-tition. Section 101(4)(A) defines “claim” to mean: 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. 11 U.S.C. § 101(4)(A). There is no dispute that on the day relief was entered in this bankruptcy proceeding that Apperson’s claim could be characterized as unliquidated, contingent, unma-tured and disputed. The dispute is whether it had a “right to payment” on that day. See Matter of M. Frenville Co., Inc., 744 F.2d 332, 336 (3rd Cir.1984). As a general rule when parties agree in advance that one party will pay the other party liquidated damages upon the occurrence of some certain event, “... there exists a right to payment, albeit contingent, upon the signing of the agreement.” Id. The Frenville court recognized this and found that no right to payment existed in that case because there was no contract upon" }, { "docid": "18641119", "title": "", "text": "the present case the plaintiff is not seeking an order that defendant Lueking pay money to the plaintiff in order to defray cleanup costs. Based on this distinction, the plaintiff argues that an injunctive order such as is involved in this case is discharged only when the government has an alternative right to payment of money in lieu of compelling the operator or his agent to perform his reclamation duties. Here, plaintiff argues, it is seeking a purely equitable remedy; it does not have a legal right to payment under the terms of the Act. “If the only remedy allowed by law is non-monetary, the equitable remedy is not transformed into a claim.” In re Aslan, 65 B.R. 826, 830-31 (Bankr.C.D.Cal.1986). In contrast, the petitioner in Kovacs had converted its equitable remedy, a right to require the respondent to clean up the waste disposal site, into a right to payment of money by means of receivership. The defendants argue that since defendant Lueking cannot reclaim the mining sites without spending money, the obligation is dischargeable because the breach of the obligation has in reality given rise to a right to payment. 11 U.S.C. § 101(4)(B). They rely on In re Robinson, 46 B.R. 136 (Bankr.M.D.Fla.), rev’d on other grounds, 55 B.R. 355 (M.D.Fla.1985). In that case, under facts very similar to those of the case at bar, the Bankruptcy Court held that a judgment entered against a Chapter 7 debtor requiring him to restore marshland was discharged in bankruptcy. Id. at 138-39. The court reasoned that even though the duty to restore the marshland was facially nonmonetary, the debtor would be required to spend money in order to restore the marshland and that therefore the United States had a right to payment. Id. at 139. The court acknowledged that in Robinson, unlike in Kovacs, the obligation had not “been effectively reduced to a money judgment.” Id. at 138-39. However, the court reasoned that “Congress intended a broadly inclusive definition of ‘claim,’ ” and concluded that “extension [of Kovacs ] will allow greater fidelity to the principles expressed by the Supreme" } ]

[ { "docid": "8639693", "title": "", "text": "F.2d 77 (3d Cir.1983), that unemployment benefits may not be deducted from back pay awards in Title VII cases, and in McDowell v. Avtex Fibers, Inc., 740 F.2d 214 (3d Cir.1984), vacated and remanded on other grounds, — U.S.-, 105 S.Ct. 1159, 84 L.Ed.2d 312 (1985), we held that there is to be no such deduction from back pay awards in ADEA cases. The underlying rationale for these decisions is that unemployment compensation is akin to a collateral benefit which is ordinarily not deducted from a plaintiff’s recovery. As we stated in Craig, “[u]nder the collateral benefit rule, payment which a plaintiff receives for his or her loss from another source is not credited against the defendant’s liability for all damages resulting from its wrongful or negligent act.” Craig, supra, at 83. In other words, “a wrongdoer should not get the benefit of payments that come to the plaintiff from a source collateral to the defendant.” Id. at 88. Because this same reasoning applies to the award of prejudgment interest, Kaiser’s argument fails. C. Jury Instructions When charging the jury, the district court used a definition for “willfulness” (liquidated or double damages) which at the time accurately reflected the law of this Circuit. Specifically, the court charged the jury in accordance with our decision in Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir.1980), which held that for “willfulness” purposes it was “sufficient to prove that the company discharged the employee because of age and that the discharge was voluntary and not accidental, mistaken or inadvertent.” Wehr, supra, at 283. After the jury returned its verdict but before final judgment was entered, however, the United States Supreme Court decided Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), which more stringently defined the term “willfulness”. Under Thurston, willfulness will be found only if the employer “knew or showed reckless disregard for the matter of whether its conduct is prohibited by the ADEA.” Thurston, supra, at 624. In its memorandum opinion dated February 21, 1985, the district court, acknowledging the newly enunciated Thurston" } ]

[ { "docid": "1168585", "title": "", "text": "16, 69 L.Ed.2d 784 (1981). Second, Brown itself was applied retroactively. ' Nevertheless, in certain instances, a case will not be applied retroactively. In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court set forth three factors to consider in determining whether a civil statute of limitations applies retroactively. First, this Court must decide whether the decision establishes \"a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.\" 404 U.S. at 106, 92 S.Ct. at 355 (citations omitted). Second, this Court must determine whether retroactive operation will further or retard the operation of the decision in question in light of its prior history, purpose and effect. 404 U.S. at 106-07, 92 S.Ct. at 355. Finally, this Court must weigh \"the inequity imposed by retroactive applica-tion....” 404 U.S. at 107, 92 S.Ct. at 355. See Edwards v. Sea-Land Service, Inc., 720 F.2d 857, 860 (5th Cir.1983). Applying these factors to the instant case, the first factor arguably weighs against retroactive application of the Brown decision, particularly in the Fifth Circuit. Nevertheless, the other factors weigh in favor of retroactive application, particularly the second factor. This Court has previously noted that the first factor is not to be the most determinative factor in the retroactivity decision: [I]n deciding whether civil rules should be applied retroactively we think that the purpose of the rule should be given greater weight than the extent to which the parties relied on the law that existed before that rule was announced. Sea-Land Service, Inc., 720 F.2d at 862 (citations and quotations omitted). . See Eastland v. Tennessee Valley Authority, 553 F.2d 364, 368 (5th Cir.), cert denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977) (holding that the 30 day civil action filing limitation for federal employees in 42 U.S.C. § 2000e-16(c) is a \"jurisdictional requirement”). But see Milam v. United States Postal Service, 674 F.2d 860, 862 (11th Cir.1982); Martinez v. Orr, 738 F.2d" }, { "docid": "6296895", "title": "", "text": "should be applied prospectively, a court must consider three factors as set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971): whether the decision.. (1) establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; - (2) statefs] a rule whose retrospective operation will retard more than further its operation, considering the rule’s prior history and its purpose and effect; (3) [is] a decision whose retroactive application could ' produce substantial inequitable results, and for which a holding of nonretroactivity would avoid injustice or hardship. Austin, 855 F.2d at 1432-33 (citing Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56). Graham clearly overrules past Ninth Circuit precedent. See, e.g., Rinker, 831 F.2d at 831-32. However, the Supreme Court stated in Graham: Today we make explicit what was implicit in Garner’s analysis and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investí- gatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard.... Graham, 109 S.Ct. at 1871 (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Thus, the Supreme Court does not view its decision as establishing a new principle of law. In addition, retroactive application will further, not retard, the policies embodied in Graham. Graham’s application of an objective reasonableness standard furthers the essential purposes of the fourth amendment — guaranteeing that free citizens are “ ‘secure in their persons ... against unreasonable ... seizures’ of the person.” Graham, 109 S.Ct. at 1871 (emphasis added). Conditioning liability for the use of excessive force upon a showing that the force was intentional, unprovoked and brutal would frustrate rather than further the purposes of the fourth amendment and the Graham rule. Finally, retroactive application will impose no substantial inequities. The paradigm case in which we have found “substantial inequitable results”" }, { "docid": "15100632", "title": "", "text": "579 (1984), this presumption can be overcome. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), the Supreme Court established that the court should balance: (1) whether a judicial principle “establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed”; (2) whether retroactive operation will advance or retard the purpose and effect of the new rule, in light of its history; and (3) whether applying the statute retroactively will produce “substantial inequitable results.” Id. at 106-07, 92 S.Ct. at 355-56. With respect to the first prong, several courts have ruled that Patterson did not announce a new rule of law but simply clarified the application of section 1981 by giving a fair reading to its statutory language. See, e.g., Morgan v. Kansas City Area Transp. Auth., 720 F.Supp. 758, 760-61 (W.D.Mo.1989). However, most courts have determined either that Patterson decided an issue of first impression whose resolution was not clearly foreshadowed, see Prather v. Dayton Power & Light Co., 1989 WL 103737 1989 U.S.Dist. LEXIS 10756 (S.D.Ohio 1989), or else that Patterson overturned clear precedent within their circuits. Thomas v. Beech Aircraft Corp., 52 Fair Empl.Prac.Cas. (BNA) 137, 1989 WL 110848 (D.C.Kan.1989); Brackshaw v. Miles, Inc., 723 F.Supp. 60 (N.D.Ill.1989). In this respect, Patterson clearly reversed Second Circuit authority allowing § 1981 claims for hostile working environment and harassment, see Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir.1987). However, where, as here, the Supreme Court itself “has given retrospective application to a newly adopted principle, 'no sound reason exists for not doing so here.’ ” Welyczko v. U.S. Air, Inc., 733 F.2d 239, 241 (2d Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984) (quoting Holzsager v. Valley Hospital, 646 F.2d 792, 797 (2d Cir.1981)); see also Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir.1990). Moreover, plaintiffs have not submitted sufficient reasons under the Chevron balancing test to avoid" }, { "docid": "13497910", "title": "", "text": "considered it since in McCarter v. Mitcham, 883 F.2d 196 (1989), Gatto v. Meridian Medical Associates, Inc., 882 F.2d 840 (1989), cert. denied, — U.S. -, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990), and most recently in Gruber v. Price Waterhouse, 911 F.2d 960 (1990). The limitations period should be applied retroactively unless the party attempting to avoid retroactive application persuades the court that the rule should be applied prospectively only. Hill, 851 F.2d at 696-97. The method for applying the “uncommon exception” of prospective application of the Data Access rule requires a ease-by-case analysis of the three-part test enunciated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Id., at 697; Gruber, 911 F.2d at 964-65. These factors are premised on a general assumption that judicial decisions should be applied retroactively. In re National Smeltinq of New Jersey, Inc., 722 F.Supp. 152, 157 (D.N.J.1989). The three-part test of Chevron Oil states: First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits-and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). In applying the first part, “[pjrior precedent must be ‘sufficiently clear that a plaintiff could have reasonably relied upon it in delaying suit, a criteria that was not met where the law was erratic and inconsistent.’ ” Hill, 851 F.2d at 696, quoting Fitzgerald v. Larson, 769 F.2d 160, 163 (3rd Cir.1985). Although the" }, { "docid": "6567219", "title": "", "text": "presumption of retroactivity may be overcome, however, by meeting the criteria established by Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) for deciding whether to apply non-retroactively the holding of a case. See Al-Khazraji v. St. Francis College, 784 F.2d at 512; Fitzgerald v. Larson, 769 F.2d 160 (3d Cir.1985). Chevron requires the federal courts to analyze the decision in three steps: First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retrospective application, for “[wjhere a decision of this Court could produce substantially inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroaetivity.” 404 U.S. at 106-107, 92 S.Ct. at 355 (citations omitted). Aaron’s argument must be, then, that the Third Circuit decision in 21 West Lancaster Corp. meets these Chevron criteria for nonretroactivity. Respectfully, I disagree. I cannot conclude that the Third Circuit’s decision either overruled clear past precedence or decided an issue of first impression “whose resolution was not clearly foreshadowed.” Chevron, 404 U.S. at 106, 92 S.Ct. at 355. On the contrary, various courts had confronted the question prior to that court’s consideration of the issue, and those courts were unanimous (except for the district court, in 21 West Lancaster Corp.) in holding that a liquor license in Pennsylvania could be neither property nor the subject of a valid security interest. See In re Hodges; 1412 Spruce, Inc.; In re Revocation of Liquor License. The sole case decided to the contrary was overturned on that very issue. As a result, I cannot conclude that reliance on" }, { "docid": "6296894", "title": "", "text": "the Johnson v. Glick analysis, which turns in part on the subjective intent of the officers, is inappropriate in the fourth amendment context. Id. at 1872. As the Court noted, “[t]he Fourth Amendment inquiry is one of ‘objective reasonableness’ under the circumstances, and subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.” Id. at 1873. If the fourth amendment analysis of Graham applies to this case, the Rinker instruction was inappropriate. In order to apply Graham to this case, we must determine that (1) Graham should be applied retroactively, and (2) Hoy’s allegedly excessive use of force occurred in the context of a “seizure,” triggering the protection of the fourth amendment. 1. Retroactive Application of Graham Our circuit recognizes that ordinarily a decision reformulating federal civil law will be applied retroactively. Austin v. City of Bisbee, 855 F.2d 1429, 1432 (9th Cir.1988). In certain cases, however, retroactive application of the new case law will produce inequitable results; and the new rules will be applied prospectively only. In determining whether a decision should be applied prospectively, a court must consider three factors as set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971): whether the decision.. (1) establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; - (2) statefs] a rule whose retrospective operation will retard more than further its operation, considering the rule’s prior history and its purpose and effect; (3) [is] a decision whose retroactive application could ' produce substantial inequitable results, and for which a holding of nonretroactivity would avoid injustice or hardship. Austin, 855 F.2d at 1432-33 (citing Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56). Graham clearly overrules past Ninth Circuit precedent. See, e.g., Rinker, 831 F.2d at 831-32. However, the Supreme Court stated in Graham: Today we make explicit what was implicit in Garner’s analysis and hold that all claims that law enforcement officers have used excessive" }, { "docid": "22947514", "title": "", "text": "Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); cf. Mineo v. Port Authority, 779 F.2d 939 (3d Cir.1985) (holding that Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) should not be applied retroactively), cert. denied, 478 U.S. 1005, 106 S.Ct. 3297, 92 L.Ed.2d 712 (1986). I am therefore convinced that the re-troactivity issue must be addressed in determining whether the new rule of law should be applied to the district court’s order in this case. I commence my analysis from the established legal principle that this court has the power to apply a rule of law prospectively only. See Northern Pipeline, 458 U.S. 50, 102 S.Ct. 2858; Cohn v. G.D. Searle & Co., 784 F.2d 460 (3d Cir.), cert. denied, — U.S. -, 107 S.Ct. 272, 93 L.Ed.2d 248 (1986). The Supreme Court has set forth a three-part test for determining when a court should not apply a newly announced rule of law retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The Chevron Court stated: First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., [392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968) ], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, [393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969)]. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively," }, { "docid": "7291641", "title": "", "text": "retroactively applied to this case. Our determination whether to apply Betts retroactively requires the weighing of three factors: (1) whether Betts “establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolütion was not clearly foreshadowed”; (2) whether, after looking at the prior history of the Betts rule and at its purpose and effect, “retrospective operation will further or retard its operation”; and, (3) whether retroactive application of the Betts rule would be inequitable. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted). Each factor need not compel prospective application. Jones v. Consolidated Freightways Corp., 776 F.2d 1458, 1460 (10th Cir.1985). Where, for example, a decision “ ‘could produce substantial inequitable results if applied retroactively, there is ample basis ... for avoiding the “injustice or hardship” by a holding of non-retroactivity.’ ” Chevron, 404 U.S. at 107, 92 S.Ct. at 355 (quoting Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969) (per curiam)). Betts clearly established a new principle of law by transforming what had been an affirmative defense into an element of an employee’s prima facie case. Prior to Betts, every circuit which addressed the applicability of § 4(f)(2) to claims of age discrimination in employee benefit programs viewed it as an affirmative defense. Potenze v. New York Shipping Ass’n, Inc., 804 F.2d 235, 237 (2d Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 528 (1987); EEOC v. City of Mt. Lebanon, 842 F.2d 1480, 1488 (3d Cir.1988); Crosland v. Charlotte Eye, Ear and Throat Hosp., 686 F.2d 208, 211 (4th Cir. 1982); Betts v. Hamilton County Bd. of Mental Retardation and Developmental Disabilities, 848 F.2d 692, 694-95 (6th Cir.1988), rev’d sub nom. Public Employees Retirement Sys. of Ohio v. Betts, — U.S. -, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989); Karlen v. City Colleges of Chicago, 837 F.2d 314, 318 (7th Cir.), cert. denied, 486 U.S. 1044, 108 S.Ct." }, { "docid": "23188433", "title": "", "text": "June. Denial of plaintiffs’ motion for judgment NOV or new trial did not occur until September 1985. Concerning retroactivity Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), has this to say: First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our eases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” (citations omitted). In Chevron itself, the Court held that the decision whose retroactivity was at issue would not be applied retroactively because the case was one of first impression and it overruled a long line of decisions in that particular circuit. See id. at 107-08. In fact, the retroactivity analysis was applied to all aspects of that decision, even though the case was only in discovery at the time that the decision whose retroactivity to be analyzed was handed down. See id. at 99, 92 S.Ct. at 351-52. We noted in Cochran v. Birkel, 651 F.2d 1219, 1223 n. 8 (6th Cir.1981), that under Chevron the presumption is that a newly announced rule will apply retroactively and that the burden of persuasion is upon the party asserting prospective-only application. Applied here, the fact that a twenty-two day trial had already been concluded, and a jury verdict rendered, before the Helminski decision came down is certainly a factor to be considered in determining whether or not it would be equitable to apply Helminski retroactively. Pitts v. Frito-Lay, Inc., 700 F.2d 330, 334 (6th Cir.1983). Further, the" }, { "docid": "12063577", "title": "", "text": "U.S.C.A. § 2000e-5(g). Prior to 1985, Alabama’s one-year statute of limitations applied to section 1983 claims alleging discriminatory employment practices. See, e.g., Smith v. McClammy, 740 F.2d 925, 927 (11th Cir.1984) (per curiam) (citing Doyle v. University of Alabama, 680 F.2d 1323 (11th Cir.1982)). Thus, the applicable statutes of limitations prevented plaintiffs from asserting claims based on events occurring prior to August 27, 1971. In 1985, the Supreme Court decided Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Wilson, the Court held that the state limitations period for personal injury actions would apply to all actions arising under section 1983 within a particular state. Id. at 276, 105 S.Ct. at 1947. Subsequently, this Court decided that the six-year limitations period provided in Ala.Code § 6-2-34(1) applies to section 1983 actions arising in Alabama. Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985), cert. denied, 474 U.S. 1105, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986). Appellants argue that this six-year limitations period should apply retroactively to their claims, and that therefore they should be allowed to try the merits of claims arising before 1971. Judicial decisions presumptively apply retroactively to all pending cases. Gulf Offshore Co. v. Mobil Oil Co., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). To determine whether to deny retroactive effect to a judicial decision, we must follow the three-factor test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See, e.g., Williams v. City of Atlanta, 794 F.2d 624 (11th Cir.1986) (applying Chevron to grant retroactive effect to uniform limitations period for section 1983 actions in Georgia). First, we must determine whether Jones established a new principle of law, either by overruling clear precedent on which litigants may have relied or by deciding an issue of first impression. Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Second, we must look to the purpose and effect of Jones and determine whether retroactive application in this case would advance or inhibit that purpose and effect. Id. at 106-07, 92" }, { "docid": "23557505", "title": "", "text": "We did not need to decide this question on remand in Knoll because plaintiff’s claim was held timely both prior to Wilson v. Garcia and following it as filed less than two years from the injury. IV. RETROSPECTIVE APPLICATION The Supreme Court addressed the issue of retrospective application of changes in the law of statutes of limitation in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), applying a three-part analysis: First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” (citations omitted). We turn to analyze Smith’s action in light of these factors. A. The Change from Prior Law First, did the decision in Wilson v. Garcia “establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed”? Chevron, 404 U.S. at 106, 92 S.Ct. at 355. It is true, as Smith argues, that Wilson v. Garcia held that federal courts must select one state statute of limitations “for all § 1983 claims”, 105 S.Ct. at 1947 (emphasis added), and thereby overturned our precedent under which we applied different limitation periods to different types of § 1983 claims. See, e.g., Perri v. Aytch, 724 F.2d 362 (3d Cir.1983); Polite v. Diehl, 507 F.2d at 119 (3d Cir.1974) (in banc); Hileman v. Knable, 391 F.2d 596," }, { "docid": "23698944", "title": "", "text": "claim. Neither he nor this court foresaw the Supreme Court’s recent ruling in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). See Goodman v. Lukens Steel, 777 F.2d 113, 118 (3d Cir.1985). However, Wilson v. Garcia has made it necessary for this court to re-examine its prior decisions. Consequently, in Goodman, we held that the Supreme Court’s ruling mandated that Pennsylvania’s statute of limitations for personal injuries be applied to actions brought under Section 1981. This is a two-year statute of limitations. 42 Pa.C.S.A. § 5524. As noted above, the general presumption is that federal courts should apply the law in effect at the time that cases are adjudi cated. Gulf Offshore Company, 453 U.S. at 486 n. 16, 101 S.Ct. at 2879 n. 16; Scott, 725 F.2d at 228. Chevron Oil Co. v. Hudson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), sets forth the criteria for deciding whether to apply retroactively the holding of a case. See Fitzgerald v. Larson, 769 F.2d 160 (3d Cir.1985); Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.) cert. denied — U.S. -, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). Chevron requires the federal courts to undertake a three-part analysis: First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retrospective application, for [wjhere a decision of this Court could produce substantially inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding' of nonretroactivity.” 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). We must evaluate these three factors in light of" }, { "docid": "12063578", "title": "", "text": "that therefore they should be allowed to try the merits of claims arising before 1971. Judicial decisions presumptively apply retroactively to all pending cases. Gulf Offshore Co. v. Mobil Oil Co., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). To determine whether to deny retroactive effect to a judicial decision, we must follow the three-factor test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See, e.g., Williams v. City of Atlanta, 794 F.2d 624 (11th Cir.1986) (applying Chevron to grant retroactive effect to uniform limitations period for section 1983 actions in Georgia). First, we must determine whether Jones established a new principle of law, either by overruling clear precedent on which litigants may have relied or by deciding an issue of first impression. Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Second, we must look to the purpose and effect of Jones and determine whether retroactive application in this case would advance or inhibit that purpose and effect. Id. at 106-07, 92 S.Ct. at 355-56. Finally, we must consider the inequity that would be created by retroactive application of the new rule. Id. at 107, 92 S.Ct. at 355. The first Chevron factor works against retroactive application of the decision in Jones. The six-year statute of limitations represented a clear break from the past. Prior to 1985, a one-year limitations period applied in Alabama to section 1983 actions based on employment discrimination. See, e.g., Dumas v. Mount Vernon, 612 F.2d 974 (5th Cir.1980) (one-year limitations period applies under Alabama law to action alleging racial discrimination in hiring decision). Jones established a new rule that a six-year limitations period applies to all section 1983 actions arising in Alabama. Jones thus overruled clear precedent. The second Chevron factor does not weigh in favor of retroactive application of the six-year limitations period. The second factor focuses on the purpose and effect of the new decision. See Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56. The Supreme Court intended Wilson to further uniformity and certainty of limitations periods for section" }, { "docid": "9406883", "title": "", "text": "two years from the time ETFs cause of action accrued. Even accepting the City’s contention that ETFs asserted § 1983 claims accrued simultaneously with the signing of the franchise agreement on November 11, 1980, this Court is unwilling to hold ETFs action to be time barred under Wilson v. Garcia. In determining whether a holding is to be given retroactive effect, courts have generally considered three separate factors. As stated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971): First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ ... Finally, we have weighed the inequity imposed by retroactive application, for ‘[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of non-retroactivity.’ Id. 404 U.S. at 106-07, 92 S.Ct. at 355-56, 30 L.Ed.2d at 306 (citations omitted); accord Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir) cert. denied, — U.S.-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). Here, in light of the first Chevron factor, this Court concludes that the Wilson v. Garcia holding may not be retroactively applied. Where a new principle of law has been established which overrules clear past precedent, on which the litigants could reasonably rely, the involved decision may not be given retroactive effect. See Chevron Oil, supra; Smith v. City of Pittsburgh, supra. There can be no dispute that Wilson v. Garcia established a new principle of law by concluding that federal courts must apply the state personal injury statute of limitations for all § 1983 claims." }, { "docid": "3997897", "title": "", "text": "we explained the three qualifications necessary for applying a decision prospectively. This three-part test was enunciated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), as follows: First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Chevron Oil Co. v. Huson, 404 U.S. at 106-07, 92 S.Ct. at 355-56 (citations omitted). Although we have recently indicated “that modern jurisprudence recognizes no set principle of retroactivity,” Juzwin, 900 F.2d at 692 {see also accompanying footnote 8), we note a “continuing presumption in favor of retroactivity” (id. at 693) in our caselaw, specifically in those circumstances where Congress has been silent. See also Kaiser Aluminum & Chemical Corp. v. Bonjorno, — U.S. -, 110 S.Ct. 1570, 1579-88, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring). Thus, despite the fact that we have applied Data Access retroactively in Hill, Gatto, and McCarter, the determination of retroactivity vel non involves a balancing which must be done on a case by case basis. Juzwin, 900 F.2d at 692 (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971)). The burden of persuasion rests upon the party attempting to avoid retroactive application. Id. at 693 (citing Ackinclose v. Palm Beach County, Fla., 845 F.2d 931, 933 (11th Cir.1988)). Here the district court found that the three factors of Chevron were met and" }, { "docid": "5248530", "title": "", "text": "motions for sanctions after discovery of an abuse best serve both the systemic and case-specific deterrent functions of Rule 11. Here, however, in light of the possibility that counsel relied on Szabo in waiting to bring his motion, we vacate the district court order dismissing Zenner’s Rule 11 motion as untimely, and remand for further proceedings consistent with this opinion. Vacated and Remanded. . Zenner filed two notices of appeal — the first on May 31, 1990, after the district court dismissed his Rule 11 motion as untimely, and the second on August 24, subsequent to the July 26 date upon which the April 26 order dismissing the case became final. The first was sufficient to vest this Court with jurisdiction, under the collateral order exception to 28 U.S.C. § 1291. See TMF Tool Co. v. Muller, 913 F.2d 1185, 1188-89 (7th Cir.1990); Frazier v. Cast, 771 F.2d 259, 261-62 (7th Cir.1985). . Rule 46 states: A petition for attorney’s fees in a civil proceeding shall be filed within ninety days of the entry of final judgment, provided that the court upon written motion and for good cause shown may extend the time. A petition for fees shall be denied if it is not filed within the period established by this rule. . We choose not to apply this decision retroactively in light of the three-factor test set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). \"First, the decision must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Id. at 106, 92 S.Ct. at 355 (citations omitted). Second, the merits and demerits in each case must be weighed \"by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.\" Id. at 106-07, 92 S.Ct. at 355 (citations omitted). Third, the court must consider the inequity that retroactive application would impose. Id." }, { "docid": "23132839", "title": "", "text": "733 F.2d 543, 548 (8th Cir.1984). Having rejected Wycoff’s preliminary arguments, we turn to the issue of whether Wilson is retroactively applicable to Wycoff s claim. The Supreme Court, in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), identified three factors having a bearing on this issue: First, did the new principle under consideration overrule “clear past precedent on which litigants may have relied” or “decid[e] an issue of first impression whose resolution was not clearly foreshadowed,” id. at 106, 92 S.Ct. at 355; second, in light of its “purpose and effect,” will retroactive application of the rule in question “further or retard its operation,” id. at 107, 92 S.Ct. at 355 (citation omitted); third, could retroactive application of the principle in question “produce substantial inequitable results” in individual cases, id. (citation omitted). See also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982); Occhino, 686 F.2d at 1308-09. Based upon our analysis of these factors, we are satisfied that Wilson should be given retroactive effect. The issue presented to the Supreme Court in Wilson had not previously been addressed by that Court. The issue had, however, been addressed in virtually every circuit, see Garcia v. Wilson, 731 F.2d 640, 643-48 (10th Cir.1984), aff'd, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and thus cannot realistically be considered one of “first impression.” Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Given this fact, in applying the first prong of the Chevron test we must determine whether Wilson “established] a new principle of law * * * by overruling clear past precedent on which litigants may have relied.” Chevron, 404 U.S. at 106, 92 S.Ct. at 355. When Wycoff filed this action, the issue of the applicable statute of limitations had led to confusing and inconsistent results both nationally, see Garcia, 731 F.2d at 643-48, and within this circuit, see Garmon, 668 F.2d at 403-05. In large part, it was this “conflict, confusion, and uncertainty” that led the Supreme Court" }, { "docid": "1481111", "title": "", "text": "law.” United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also Jordan, 847 F.2d at 1375 n. 7 (whether employee’s conduct creates hostile environment under Title VII reviewed de novo). Ill After the district court’s decision in this case, this Circuit enunciated the standards by which an employer’s actions should be measured when deciding whether the employer is liable for sexual harassment by an employee. See Ellison v. Brady, 924 F.2d 872 (9th Cir.1991). Thus, before evaluating the appropriateness of the VA’s conduct, we must decide whether the standard announced in Ellison applies retroactively to the present case. Retroactivity depends on an analysis of three factors: (1) whether Ellison announced a new rule of law; (2) whether retroactive application of the Ellison rule “will further or retard its operation;” and (3) whether retroactive application would produce inequitable results. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). According to Chevron Oil, a case establishes a new rule “either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Id. We dq not believe that Ellison created a new rule of law. In Ellison, this court held that the employer’s remedial action “should be ‘reasonably calculated to end the harassment.’ ” Id. at 882, quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983). Essentially, “[e]mployers should impose sufficient penalties to assure a workplace free from sexual harassment.” Ellison, 924 F.2d at 882. If an employer knows or should have known of the harassment, it must take some form of disciplinary action. Id. (failure to “take even the mildest form of disciplinary action” renders the remedy insufficient under Title VII). The precise nature of the disciplinary action is up to the employer, provided that it is “assessed proportionately to the seriousness of the offense.” Id. The VA argues that insofar as Ellison creates a duty to take at least the" }, { "docid": "7291640", "title": "", "text": "v. City Colleges of Chicago, 837 F.2d 314, 318 (7th Cir.), cert. denied, 486 U.S. 1044, 108 S.Ct. 2038, 100 L.Ed.2d 622 (1988). An employer could disprove subterfuge by showing a cost-based justification for age-related reductions in benefits. See Karlen, 837 F.2d at 319; EEOC v. City of Mt. Lebanon, 842 F.2d 1480, 1492 (3d Cir.1988); 29 C.F.R. § 860.120(a)(1), (d)(1)-(3) (1980), redesignated 29 C.F.R. § 1625.10(a)(1), (d)(1)-(3) (1988). The Betts court implicitly overruled this prior case law. It held that § 4(f)(2) is not an affirmative defense which the employer has the burden of prov ing, but rather part of the plaintiffs prima facie case. 109 S.Ct. at 2868. Under Betts, an employee who claims that his employer’s benefits program violates the ADEA bears the burden of proving subterfuge by showing “that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some nonfringe-benefit aspect of the employment relationship,” such as hiring and firing or wages and salaries. Id. We must now determine whether, as Mobil contends, Betts should be retroactively applied to this case. Our determination whether to apply Betts retroactively requires the weighing of three factors: (1) whether Betts “establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolütion was not clearly foreshadowed”; (2) whether, after looking at the prior history of the Betts rule and at its purpose and effect, “retrospective operation will further or retard its operation”; and, (3) whether retroactive application of the Betts rule would be inequitable. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted). Each factor need not compel prospective application. Jones v. Consolidated Freightways Corp., 776 F.2d 1458, 1460 (10th Cir.1985). Where, for example, a decision “ ‘could produce substantial inequitable results if applied retroactively, there is ample basis ... for avoiding the “injustice or hardship” by a holding of non-retroactivity.’ ” Chevron, 404 U.S. at 107, 92 S.Ct. at 355 (quoting Cipriano v. City of Houma," }, { "docid": "15507028", "title": "", "text": "review of plaintiff’s motion. See Snyder v. Smith, 736 F.2d 409, 415 (7th Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984). In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court enunciated a three-part test to determine whether a newly-announced rule of law should be applied only on a prospective basis. Two members of this court have analyzed retroactive application of Melkonyan using the Chevron test, and I follow their lead here. See Brown v. Sullivan, Civil No. 89-4138, 1991 WL 225012, 1991 U.S.Dist. LEXIS 15553 (E.D.Pa. Oct. 29, 1991); Miller v. Sullivan, Civil No. 90-2408, 1991 WL 165067, U.S.Dist. LEXIS 11919 (E.D.Pa. Aug. 23, 1991). The factors identified in Chevron are as follows: First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application____ Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). Application of these three factors strongly suggests that Melkonyan should not receive retroactive application. First, it is plain that plaintiff could have justifiably relied on the established precedent of Brown to decline to file a petition for attorney’s fees at the time of this court’s remand order. Although the Third Circuit’s interpretation of the EAJA did not bar plaintiff from filing at that time, see Taylor v. United States, 749 F.2d 171, 175 n. 8 (3d Cir.1984), neither did it require one. Indeed, because, under Brown, plaintiff could not at that time have been considered a prevailing party, Brown as a practical matter discouraged the filing of a motion at a time when plaintiff could not possibly make one" } ]

[ { "docid": "15707118", "title": "", "text": "into the harbor when the storm was on. To put in to this stakeboat was an everyday practice up to this time. It appears that the storm which did break was the worst, that had occurred in New Haven in many years. It would have been hazardous to attempt to take the tows from the stakeboat into the harbor after the storm arose. Such of the boats as went adrift were lost after they got beyond the breakwater, despite the efforts of the tugs to save them. This would indicate that the boats would not have been safer in the harbor. We think the appellants failed to sustain the burden of proof in the claim of negligence in making the mooring in question or in remaining there. The Wm. H. Baldwin (C. C. A.) 271 Fed. 411; The Eastern (C. C. A.) 280 Fed. 711. But it is contended that, as to the claim presented by the first libel, the charter for the three scows, the Curry, Carter, and Ryerson contained an absolute guaranty to return the scows in as good condition as received, ordinary wear and tear excepted. The letter of Wan-dell must be read in its entirety. It is undoubtedly true that if the charter contained but the first paragraph of that letter, there would be an acceptance of this responsibility; but the next paragraph must be read with it, and there it appears that it was not intended to make the appellee an insurer. What was intended provided only for an exemption from liability when the appellant Wandell collected insurance for the loss. A covenant to insure is not implied, and can only be imposed where it is found in an agreement by clear and explicit language. Mulvaney v. King Paint Co., 256 Fed. 615, 167 C. C. A. 642. In Sun Printing Co. v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 366, the covenant of obligation assumed clear and explicit liability by the charterer for all loss and damage, even if caused by third parties or tire elements. We think the" } ]

[ { "docid": "16065745", "title": "", "text": "454, 458, affirmed 296 F. 1023 (C. C. A. 2). While these rules of presumption have usually been stated in suits by the owner for damage to a demised vessel returned in poor condition, they are equally applicable where, as, in the present case, the owner seeks indemnity against( the imposition of liability upon the boat because of the charterer’s use of her. This brings-us to the evidence and requires consideration of the owner’s proof of seaworthiness at the time of delivery and the charterer’s explanation of its use of the lighter thereafter. The lighter was delivered at Brooklyn on November 24, 1926, and was towed by the Transmarine Corporation to Port Newark, where she arrived on the 24th or 25th. Apparently loading began on the 27th or 28th; in the meantime no use being made of her. Her captain testified that nothing happened to her until she dumped her load. Before delivery, Whalen, the owner’s representative in making the charter, went through her hold, examining her from end to end with a pocket flash-light. He testified that she was tight and sound and in first-class condition. He also said that she was “in service right along” carrying cargoes without trouble. Omitting the testimony of the lighter’s captain because the trial judge refused to credit anything he said without corroboration, Tully was the only eyewitness of the accident. He was an employee of the Trans-marine Corporation, acting as night foreman in charge of discharging the steamer. He came on duty at 7 p. m. on November 28th, and superintended the loading of the lumber upon the Sundial. At his 10 o’clock inspection “everything was all right” and the lighter’s captain reported no water in the lighter’s hold. At midnight when he went to supper she was on an even keel, and so she was when he returned an hour later. Loading continued, and at about 2:30 on the morning of the 29th Tully observed that the lighter had a slight list toward the steamer. To straighten her up he put two drafts of lumber, each weighing about 3,000 pounds, upon" }, { "docid": "23389309", "title": "", "text": "Son, Inc., the wharfinger (which it impleaded as a party to the action) in furnishing the craft with an unsafe berth and in discharging her in an improper and negligent manner. The court entered an interlocutory decree dismissing the petition impleading the wharfinger, and holding the charterer responsible for the injuries and liable for damages. On the charterer’s appeal all parties appeared and tried the case de novo. The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511. The oral charter of a seow thus manned being treated as a demise, the charterer is not an insurer, Simmons Transportation Company v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454, but is subject to the law of bailments for hire. Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612. As a bailee, he is charged with the duty of ordinary care and is liable for negligence resulting from a breach of that duty and for nothing more. The Eureka No. 70 (C. C. A.) 15 F.(2d) 366, 1926 A. M. C. 1668; Simmons Transportation Co. v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436; Moran Towing & Transportation Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696; C. F. Harms Co. v. Upper Hudson Stone Co. (C. C. A.) 234 F. 859; C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612; The Junior (C. C. A.) 279 F. 407, 408. Therefore this, action is for damages based on the charterer’s negligence. There is no dispute about the law thus far. The trouble arises in respect to the proof of the charterer’s negligence, that is, on whom, in a suit on a charter of this kind, rests the burden of proof and what is the measure of proof. The \"burden of proving negligence is upon the owner — the one asserting it. But he is not required in his opening as in other negligence cases to prove the specific acts which establish" }, { "docid": "23389311", "title": "", "text": "the charterer’s negligence. It will be enough, in the beginning at least, that he make out a prima facie ease of negligence. “He makes out a prima facie case, if he can go no further than to show that the boat was damaged during the charter period and then the burden of explanation, or, as it is sometimes said, of carrying on, lies upon the charterer. In the absence of exculpatory evidence a presumption of negligence arises against him. Wintringham v. Hayes, 144 N. Y. 1 [38 N. E. 999, 43 Am. St. Rep. 725]; Terry So Tench Co. v. Merritt & Chapman Derrick So Wrecking Co. [C. C. A.] 168 E. 533; Hasten v. Long Co. [C. C. A.] 239 F. 852; White v. Upper Hudson Co. [C. C. A.] 248 F. 893; White v. Schoonmaker Co. [C. C. A.] 265 F. 465; Schoonmaker, Conners Co. v. Lambert Transp. Co. [C. C.A.] 268 F. 102.” Moran Towing & Transp. Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696. We find from the trend of decisions that the presumption of the charterer’s negligence does not wait upon “the absence of exculpatory evidence” to arise but arises in the beginning from the fact that a boat, seaworthy when delivered, was injured while in possession of the charterer and cannot be returned in good condition. That fact, without' more, “establishes a prima facie case of fault, and places on the (charterer) the duty of rebutting the prima facie ease — that ’ is, to explain the situation,” C. F. Harms Co. v. Turner Construction Co. (D. C.) 290 F. 612, 613; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, and show that there was no fault or negligence at all or, if any, it was that of another, for instance, and, as ■claimed here, it was that of the owner’s scow captain and therefore imputable to the owner, The Junior (C. C. A.) 279 E. 407, or that of tee wharfinger. If the charterer’s evidence in explanation of the injuries is sufficient to overcome tee presumption" }, { "docid": "16956696", "title": "", "text": "the court held in United States v. Shea, 152 U.S. 178, at page 189, 14 S.Ct. 519, at page 522, 38 L.Ed. 403: “No technical words are necessary to create a demise. It is enough that the language used shows an intent to transfer the possession, command, and control”. Here there can be no doubt at the time of the sinking of the vessel that the possession, command and control thereof was in the respondents. For upon the leaving by the Captain who had been in the libellant’s employ, there was no one in connection with the libellant who had anything to do with the Scow, and, accordingly, since the charter was a demise the respondents were the ownei's of the boat pro haec vice. The Johnson Lighterage Co. No. 24, D.C., 240 F. 435. The burden of proof to establish negligence is of course on the libellant, but the showing by the libellant of the contract to hire and the failure of the respondents to fulfill the conditions of the charter, that the Victor No. 1 be returned in the same condition as when it was received, less reasonable wear and tear, creates a case of prima facie negligence on the part of the respondents. Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., 3 Cir., 40 F.2d 249, 251. - For as has been indicated while the burden of proving negligence is on the owner, the libellant after he has made out a prima facie case by the showing of the seaworthiness of the vessel, the charter or agreement to hire and the failure to return the same in the condition it was delivered, barring ordinary wear and tear, casts the burden of going forward, as it has been often phrased on the respondents, which is a requirement that he sufficiently explain this to meet the prima facie case so made out by the libellant. Have, therefore the respondents by competent testimony offered a sufficient explanation which would match the prima facie case of negligence, established by the libellant? If he has not so done, a situation is" }, { "docid": "16065744", "title": "", "text": "be established if the accident was due to negligent loading. See The Alert, supra; The Willie, supra. The owner’s petition impleading the charterer alleges that, if damage occurred as alleged in the libel, it was due to the fault and neglect of the charterer. On this issue the owner has the burden of proof, but is aided by presumptions in case he proves delivery in a seaworthy condition. Such proof makes a prima facie case for the owner and easts on the charterer the burden of explaining what was done with the boat after delivery so as to negative the presumption of negligence, although the ultimate burden of proving negligence of the charterer remains on the owner. Terry & Tench Co. v. Merritt & Chapman D. & W. Co., 168 F. 533 (C. C. A. 2); Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, affirmed 277 F. 438 (C. C. A. 2); National Lighterage Corp. v. Transmarine Corp., 35 F.(2d) 1020 (C. C. A. 2); The Raymond M. White (D. C.) 290 F. 454, 458, affirmed 296 F. 1023 (C. C. A. 2). While these rules of presumption have usually been stated in suits by the owner for damage to a demised vessel returned in poor condition, they are equally applicable where, as, in the present case, the owner seeks indemnity against( the imposition of liability upon the boat because of the charterer’s use of her. This brings-us to the evidence and requires consideration of the owner’s proof of seaworthiness at the time of delivery and the charterer’s explanation of its use of the lighter thereafter. The lighter was delivered at Brooklyn on November 24, 1926, and was towed by the Transmarine Corporation to Port Newark, where she arrived on the 24th or 25th. Apparently loading began on the 27th or 28th; in the meantime no use being made of her. Her captain testified that nothing happened to her until she dumped her load. Before delivery, Whalen, the owner’s representative in making the charter, went through her hold, examining her from end to end with a pocket flash-light." }, { "docid": "23685038", "title": "", "text": "was in charge of the barge during the entire period of the charter, states that she was not in any collision, nor was she jarred or jolted in any manner, such as might bring about an injury as that sustained to the chime log. And he says she had plenty of water. He was unable to account for the damage. It was stated that the cost of repairing would amount to $325. No evidence is offered to indicate how the damage to the doorsill occurred, but the cost of repair was given as about $10. The district judge held that the char- térers were not liable for the injury to the vessel occurring from the Black Tom disaster, and held that there was no evidence-to show that there was any negligence by the charterers resulting iri damage to the chime log or doorsill, and that the charterers would be relieved from liability, since he found this was but injury occurring through ordinary wear and tear.' He further found that there was no proof as to the condition of the bottom of the barge at the time of delivery to the respondents. Libelants filed a libel against the King Paint Manufacturing Company, which, in turn pleaded in the subcharterer, the Simmons Transportation Company. Libelants’ theory is that they are entitled to succeed for breach of an express covenant to return the barge in the same condition as received, with the usual wear and tear excepted. This barge was demised to the King Paint Manufacturing Company, which, so far as the libelant is concerned, had exclusive possession, and may therefore be held as the bailee subject to the liability thus imposed. In the Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, at page 654, 22 Sup. Ct. 240, at page 245 (46 L. Ed. 366), Justice White said: “It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle. This" }, { "docid": "23389313", "title": "", "text": "of his negligence arising out of a charter of this character by proving specifically how the injuries occurred or generally his handling of the boat, he will be relieved of his implied undertaking to return the boat in good condition, unless the owner, on whom will then rest the burden of proving the charterer’s negligence otherwise than by the presumption, produces evidence that outweighs the rebuttal evidence. C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612, 614; Hildebrandt v. Flower Lighter-age Co. (D. C.) 277 F. 436; Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612, 615; Schoonmaker, Conners Co. v. Lambert Transp. Co. (C. C. A.) 268 F. 102; O’Brien Bros. v. New York (C. C. A.) 9 F.(2d) 542; Terry & Tench Co. v. Merritt & Chapman D. & W. Co. (C. C. A.) 168 F. 533. If, however, the evidence which the charterer offers to rebut the presumption should not in the opinion of the trial court excuse him, the presumption of negligence which the law raised against him in the beginning remains as though he had not made an attempt to rebut it, just as though he stood mute facing the presumption.' Coming to the trial, it is certain from the evidence teat tee injuries to the scow were occasioned by the negligence of someone. The owner made out a prima facie ease of negligence against tee charterer under the presumption and there rested. The charterer, in turn, charged negligence to the owner’s scow captain in mooring the scow in a berth with a slanting bottom, known to him after making soundings. The Raymond M. White (D. C.) 290 F. 454, 457. If it had proved that such a berth was unsafe, that would have been enough. But we find, as evidently did the trial judge, that while the bottom did slant from the piling at an angle of from five to twelve feet at low tide, it was not unsafe because from such a bottom all along that side of the river a craft held by slack lines," }, { "docid": "9438577", "title": "", "text": "evidence that the libelant was in any way prejudiced or that it changed its position. Columbus S. & H. R. Co. Appeals (C. C. A. 6) 109 F. 177; and Feick v. Stephens (C. C. A. 6) 250 F. 185. So far as the evidence shows, libelant benefited by the delay of respondent in keeping the steamer after the 30-day period. Finally, respondent had a right to the benefit of the covenant of implied warranty, notwithstanding that he agreed “to assume full responsibility for the boat” and “to return the boat * * • in good working order and repair.” The broadest possible scope which might be given to this provision of the charter party would be to make the respondent responsible for the loss of the boat or for any damage or injury to her which might be the result of negligence or causes other than unseaworthiness. The decisions cited by libel-ant we \"think are not to the contrary. In the cited cases: Sun Printing & Publishing Association v. Moore, 183 U. S. 643, 22 S. Ct. 240, 46 L. Ed. 366; Dittmar v. Frederick Starr Contracting Co. (C. C. A. 2) 249 F. 437; City of New York v. Clyde Lighterage Company (C. C. A. 2) 13 F.(2d) 533; and Berwind White Coal Mining Co. v. United States (C. C. A. 2) 15 F.(2d) 366, the claimed loss and damage was not due to unseaworthiness, and the courts therefore had no occasion to consider whether the law implied warranties of seaworthiness in the charter parties involved. Compare Bartley v. Borough Development Co. (D. C.) 214 F. 296. Though we have not discussed in detail all of libelant’s contentions, we have carefully considered all. of them. The conclusions we have reached require that the decree of the District Court be affirmed. The witness Wyekoff testified that there was “more or less deterioration in the frames”; witness Tully, that there was “some deterioration”; witness Stanton, “Oh, yes, yes, they were rusted”; witness Norville, “They were rusted”; witness Booth, “some rust”; and witness O. E. Kennedy, “some deterioration there.”" }, { "docid": "23570037", "title": "", "text": "makes such charters, as it was under, demises, is limited to vessels used in New York Harbor. It is also said that barges on the barge canal carry wheels hooked up for steering, and that this feature in some way differentiates them legally from harbor craft. We can see no basis for applying different rules as between barges on the canal and those in New York Harbor. Both kinds are without motive power and are essentially subject to the control and direction of the tugs which tow them. The agreements by which they are chartered are demises. Legally such vessels are regarded as in the exclusive possession of the charterer. In such a relation the charterer is only liable for negligence. But, when the barge is injured while in the exclusive possession of a bailee, the latter has the duty of going forward with evidence to explain the cause of the damage and to show that it was due to no lack of care on its part. Terry & Tench Co. v. Merritt & Chapman, etc., Co. (C. C. A.) 168 F. 533; Schoonmaker-Conners Co. v. Lambert Transportation Co. (C. C. A.) 268 F. 102; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, affirmed (C. C. A.) 277 F. 438; O’Brien Bros., Inc., v. City of New York (C. C. A.) 9 F.(2d) 542. It is unnecessary to say whether it would have been a wiser exercise of discretion to have sustained the interrogatories, for there was no real prejudice in any event. The only information of any importance that the respondent was entitled to was the statements of the bargee that the damage occurred in a certain way. That information it had from libelant’s letters, which it put in evidence. It could not require the libelant to admit-the correctness of these reports which the latter knew nothing about. Ampere Barge Company v. New York Central R. R. Co., 127 Misc. Rep. 444, 216 N. Y. S. 287. We cannot agree with the holding in F. G. & M. No. 22, 40 F.(2d) 507, 1929 A. M. C." }, { "docid": "11884204", "title": "", "text": "the tank and other equipment of the boat were in the possession of the government at the time of the trial, they were not produced despite the fact that the government expert testified he would have been able to contribute more in the way of explanation of the explosion and expert opinion evidence if he could have seen the tank. Since it was not produced, the presumption is that its production would have constituted evidence unfavorable to the respondent, and in such a case, the court is justified in concluding that the proof, if offered, instead of rebutting, would sustain the case against the government. Patton-Tully Transportation Co. v. Barrett, 6 Cir., 37 F.2d 516; Henderson v. Richardson Co., 4 Cir., 25 F.2d 225. We come, then, to the issue whether the government was the chartered owner of the boat at the time of the explosion, for it must show that it was either an owner or a chartered owner to bring its proceedings within the scope of the limitation of the statutes limiting liability. The boat was taken into the Coast Guard pursuant to a written offer and acceptance, which was referred to as a license, and which provided that it might be relinquished by the Coast Guard at any time; but the boat was offered and accepted for the duration of the war. The government obtained exclusive possession and management of the vessel from the owner and became owner pro hac vice. See Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. Accordingly, the government was entitled to maintain these proceedings in admiralty to the same extent as one specifically designated a charter owner. The MV Bull Calf, D.C.Mo., 66 F.Supp. 1019. In Dailey v. Carroll, 2 Cir., 248 F. 466, 467: “The evidence shows the charterer in absolute control and entitled to direct the navigation and employment of the vessel. These are the indicia by which the nature of the charter party is tested and decision reached as to whether it is a demise or not.” The mere fact that the government" }, { "docid": "23389308", "title": "", "text": "less ordinary wear and tear. Schoonmaker, Conners Co. v. Lambert Transportation Co. (C. C. A.) 268 F. 102. After loading the scow up the river with crushed stone the charterer took her to Jersey City and placed her in a berth of the cargo consignee, Yan Keuren & Son, Inc., the wharfinger. She was then in good condition, so far as could be judged from her outer structure, and also in good condition on the next day when the consignee began to unload and after a part of the cargo had been discharged. On the third day, before discharging was resumed, the captain went below and discovered injuries to her inner structure. Later, the owner filed this libel against the charterer on its implied warranty of return in good condition. The charterer by its answer denied fault or negligence on its part and asserted that the injuries were due to fault or negligence of the owner’s servant — the “captain” — in charge of the seow, or to fault or negligence of Yan Keuren & Son, Inc., the wharfinger (which it impleaded as a party to the action) in furnishing the craft with an unsafe berth and in discharging her in an improper and negligent manner. The court entered an interlocutory decree dismissing the petition impleading the wharfinger, and holding the charterer responsible for the injuries and liable for damages. On the charterer’s appeal all parties appeared and tried the case de novo. The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511. The oral charter of a seow thus manned being treated as a demise, the charterer is not an insurer, Simmons Transportation Company v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454, but is subject to the law of bailments for hire. Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612. As a bailee, he is charged with the duty of ordinary care and is liable for negligence resulting from a breach of that duty and for nothing more. The Eureka No. 70 (C. C. A.) 15 F.(2d)" }, { "docid": "21513510", "title": "", "text": "HAND, Circuit Judge (after stating the facts as above). As a bailee, the respondent would normally be liable for negligence, and for nothing more. C. F. Harms Co. v. Upper Hudson Stone Co., 234 F. 859, 148 C. C. A. 457 (C. C. A. 2). Indeed, in this circuit a covenant to redeliver in good condition, less wear and tear, adds nothing to the charterer’s obligation. Mulvaney v. King Paint Co., 256 F. 615, 167 C. C. A. 642; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Simmons Transportation Co. v. Wright & Cobb Co. (D. C.) 290 F. 454, affirmed (C. C. A.) 296 F. 1023. Thus, unless the clause relieved , the charterer of negligence, it was brutum fulmen. Sueh a contract was lawful; the only question is what it meant. The case is similar in principle to City of New York v. Clyde Lighterage Co., 13 F.(2d) 533 (C. C. A. 2), though the words there used were very different. We ought to give some effect to the language chosen, if we can, and, as no other can be found but to excuse the charterer’s negligence, it must have that. Each side relies on New Orleans-Belize Co. v. U. S., 239 U. S. 202, 36 S. Ct. 76, 60 L. Ed. 227; but we think it makes for the appellant. To be sure, in that case there was no demise; but the charter party contained a covenant to redeliver in good order, for which the charterer had no excuse but in the exculpatory clause. See, also, Morgan v. U. S., 14 Wall. 531, 20 L. Ed. 738. It is quite true that the opinion was at some pains to say that the charter was not a demise, which, if we are right, was irrelevant. On this the appellee bears hard, and rightly. However, it was apparently the chief point argued at bar, and courts are apt to follow counsel’s lead in such matters. In any case, we do not see how the clause can be an excuse for a breach of the" }, { "docid": "23387211", "title": "", "text": "ROGERS, Circuit Judge (after stating the facts as above). It appears, and indeed is conceded, that when the Kaaterskill was char tered to the Lambert Transportation Company, respondent herein, 'she was in good condition, and that when the boat was returned she was in bad condition. It was therefore incumbent upon the aforesaid respondent to show: (1) How the damage occurred; and (2) that it was not caused through its negligence, or through the negligence of any one to whom the respondent had intrusted the boat. White v. Upper Hudson Stone Co., 248 Fed. 893, 160 C. C. A. 651; Terry & Trench v. Merritt & Chapman Derrick & Wrecking Co., 168 Fed. 533, 93 C. C. A. 613. 3. That the libelant is entitled to a decree is admitted by the Lambert Transportation Company, Incorporated, the respondent. The real matter in issue, therefore, is as to the liability of the Acme Steamship Corporation, which is impleaded. It is admitted that, when the scow was returned to the libelant, she was not only not in the same condition she was in when she was taken over, but that she was indeed in a very bad condition. As the charter party contained a covenant wherein it was agreed that the scow was to be returned in like condition as on delivery, reasonable wear and tear excepted, the liability of the respondent is of course beyond any question. The difficulty in the case arises over the relation of the Acme Steamship Corporation to the matter, and is due to the fact that, after the respondent took over the scow under its chartlr with the libelant, it in turn subchartered her to the Acme Steamship Corporation, and in doing so failed through carelessness to exact of the latter a covenant for the return of the boat in the same condition as she was in on delivery, reasonable wear and tear excepted. It is settled law that, where a charter party contains no covenant for the return of a vessel in good order and condition, there is no liability for injury to the vessel" }, { "docid": "9438571", "title": "", "text": "that respondent was estopped from claiming the right to terminate the charter party at a later date; and (3) that, because respondent was “to assume full responsibility for the boat” and “to return the boat * * * in good working order and repair,” respondent assumed liability for injury or damage due to unseaworthiness. The controlling provision of the charter party is as follows: “The Patton-Tully Transportation Company agrees to charter the Steamer- Dan Quinn * * * to the Barrett Line for a period of six months, at the rate of $50.00 per day, the time of charter beginning on or about the 15th day of August, 1925. The Barrett Line to have the privilege of returning the boat and cancelling the charter at the expiration of thirty days, provided the boat does not meet with their needs. The Barrett Line to assume full responsibility for the boat during the life of the charter and at the expiration of the charter to return the boat to the Patton-Tully Transportation Company’s Landing, Wolf River, Memphis, Tennessee, in good working order and repair.” The terms of the charter party containing no provisions to the contrary, there can be no doubt that the law implied a warranty of seaworthiness. The applicable rule is announced in Work v. Leathers, 97 U. S. 379, 24 L. Ed. 1012, where Mr. Justice Swayne said, in part: “Where the owner of a vessel charters her * * ^ he is bound to see that she is seaworthy and suitable for the service in which she is to be employed. If there be defects known, or not known, he is not excused. He is obliged to keep her in proper care, unless prevented by perils of the sea or unavoidable accident. Such is the implied contract where the contrary does not appear.” The same rule is announced in Williston on Contracts, § 1078, and especially in The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644, where the court held that the warranty applied to latent, as well as patent, defects. The rule" }, { "docid": "16065743", "title": "", "text": "The Centurion, 57 F. 412, 416 (D. C. S. D. N. Y.), reversed on other grounds 68 F. 382 (C. C. A. 2), The Alert, 61 F. 113 (C. C. A. 2), and The Willie, 231 F. 865 (C. C. A. 2). Hence the decree against the lighter was correct. The charterer was also liable. It was the carrier of the cargo and the owner pro hae vice of the lighter, and was liable in personam to the cargo owner for nondelivery. See eases, supra, and J. W. Higman Co. v. The Scow Harper No. 145, 42 F.(2d) 161, decided by this court, June 2, 1930. The more serious question is which must bear the ultimate burden; that is, whether the lighter is primarily liable and her charterer only secondarily so, or vice versa. If the lighter was seaworthy when delivered, and the accident happened because of unseaworthiness eaused by something which transpired while in possession of the charterer, the latter is primarily responsible. The Higman Case, supra. Primary liability of the charterer would also be established if the accident was due to negligent loading. See The Alert, supra; The Willie, supra. The owner’s petition impleading the charterer alleges that, if damage occurred as alleged in the libel, it was due to the fault and neglect of the charterer. On this issue the owner has the burden of proof, but is aided by presumptions in case he proves delivery in a seaworthy condition. Such proof makes a prima facie case for the owner and easts on the charterer the burden of explaining what was done with the boat after delivery so as to negative the presumption of negligence, although the ultimate burden of proving negligence of the charterer remains on the owner. Terry & Tench Co. v. Merritt & Chapman D. & W. Co., 168 F. 533 (C. C. A. 2); Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, affirmed 277 F. 438 (C. C. A. 2); National Lighterage Corp. v. Transmarine Corp., 35 F.(2d) 1020 (C. C. A. 2); The Raymond M. White (D. C.) 290 F." }, { "docid": "23389312", "title": "", "text": "from the trend of decisions that the presumption of the charterer’s negligence does not wait upon “the absence of exculpatory evidence” to arise but arises in the beginning from the fact that a boat, seaworthy when delivered, was injured while in possession of the charterer and cannot be returned in good condition. That fact, without' more, “establishes a prima facie case of fault, and places on the (charterer) the duty of rebutting the prima facie ease — that ’ is, to explain the situation,” C. F. Harms Co. v. Turner Construction Co. (D. C.) 290 F. 612, 613; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, and show that there was no fault or negligence at all or, if any, it was that of another, for instance, and, as ■claimed here, it was that of the owner’s scow captain and therefore imputable to the owner, The Junior (C. C. A.) 279 E. 407, or that of tee wharfinger. If the charterer’s evidence in explanation of the injuries is sufficient to overcome tee presumption of his negligence arising out of a charter of this character by proving specifically how the injuries occurred or generally his handling of the boat, he will be relieved of his implied undertaking to return the boat in good condition, unless the owner, on whom will then rest the burden of proving the charterer’s negligence otherwise than by the presumption, produces evidence that outweighs the rebuttal evidence. C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612, 614; Hildebrandt v. Flower Lighter-age Co. (D. C.) 277 F. 436; Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612, 615; Schoonmaker, Conners Co. v. Lambert Transp. Co. (C. C. A.) 268 F. 102; O’Brien Bros. v. New York (C. C. A.) 9 F.(2d) 542; Terry & Tench Co. v. Merritt & Chapman D. & W. Co. (C. C. A.) 168 F. 533. If, however, the evidence which the charterer offers to rebut the presumption should not in the opinion of the trial court excuse him, the presumption of negligence which the" }, { "docid": "12605012", "title": "", "text": "able to support the voyage “provided that during the navigation it is maintained in sufficient aeration, above all to avoid infiltrations of dampness.” From Genoa the Saturnia proceeded again to New York, for a third transatlantic voyage, arriving on December 10, and when the chestnuts were discharged, after having been in stowage from 37 to 41 days, they outturned damaged; that is, the shipments were in whole or in part, affected by one or more of the following conditions: hot, warm, sweated, moist, mouldy, sprouted and decomposed. The shipments having been transported between Italian ports and the port of New York, the rights of the parties are governed by the U. S. Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq. In order to make out a prima facie case, the shipper must prove that his goods were loaded in good condition and outturned damaged. “The burden then lies with the carrier to exculpate itself by proving (a) that the harm resulted from an ‘excepted cause’, a cause for which it is statutorily not liable, or (b) that it exercised due diligence to avoid and prevent the harm”. American Tobacco Co. v. The Katingo Hadjipatera, D.C., 81 F.Supp. 438, 445, modified and affirmed, 2 Cir., 194 F.2d 449; General Foods Corp. v. The Troubador, D.C., 98 F.Supp. 207; Union Carbide & Carbon Corp. v. The Walter Raleigh, D.C., 109 F.Supp. 781, affirmed, 2 Cir., 200 F.2d 908; see Schnell v. The Vallescura, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373. The respondent here relies on the statutory exceptions of strike and inherent vice, 46 U.S.C.A. § 1304(2) (j) and (m). If a carrier establishes that damage is caused by one of the enumerated exceptions, it will not be held liable unless it appears that its negligence contributed to the damage, and the burden of proof upon that issue is upon the libellant. Schnell v. The Vallescura, supra; Pettinos v. American Export Lines, D.C., 68 F.Supp. 759, affirmed, 3 Cir., 159 F.2d 247. There is no dispute that the chestnuts outturned damaged at New York, and I" }, { "docid": "2052087", "title": "", "text": "the convoy had been overtaken and passed during the calm weather which followed in the wake of the storm. Shortly thereafter, at about three-fifteen •in the afternoon, the Bacon was attacked by twenty-three JU 88 German torpedo bombers. After a valiant but futile fight in which ■three enemy planes were shot down by her .armed guard, the Bacon succumbed to an aerial torpedo which struck her port side .aft near No. 5 hold. Her side was opened to the sea by the explosion and ten minutes later orders were given to abandon ship. Lifeboat No. 1, containing the Norwegian refugees and several of the crew, and lifeboat No. 2, fully loaded with members •of the crew, were successfully launched. Lifeboat No. 4 incapacitated from the storm of the prior day, was unfit for use. An attempt to launch lifeboat No. 3 ended in failure when one of the men on the ■forward bitt let go, the fall causing the boat to capsize. Two life rafts had been destroyed by the explosion of the torpedo, but two other life rafts and a donut raft were set afloat. Approximately forty-five minutes after she was abandoned, the SS Henry Bacon, her captain still aboard, went, down by the stern. Survivors were picked up two hours later by three British destroyers responding to an SOS wired from the Bacon before she sank. It is claimed by libelants that the Bacon was unseaworthy because the breakdown of the telemotor system caused her to leave the protection of the convoy and subjected her to enemy attack. Sufficient evidence is lacking, however, to support this contention. The ‘ evidence is that the Coast Guard certificate issued to the Bacon after her annual inspection in November of 1944 indicated that the ship was in seaworthy condition. While not conclusive, the approval by the Coast Guard of the equipment aboard a vessel is entitled to considerable weight. Tatem v. Southern Transp. Co., D.C., 72 F.Supp. 44, 46, affirmed 3 Cir., 166 F.2d 1020. Nor was the Bacon unseaworthy or her masters negligent in failing to provide sufficient ballast for" }, { "docid": "2578071", "title": "", "text": "broke off and was lost; it previously having been “hanging on”. The general principles of law relating to towage contracts are well settled. The owner of the tow is responsible for its seaworthiness, and the owner of the tug for its safe navigation. Curtis Bay Towing Co. of Virginia v. Southern Lighterage Corp., 200 F.2d 33 (4th Cir. 1952). The tug is not liable as an insurer or a common carrier; its duty is to exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar serv ice. Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932). One who offers a vessel for towing holds her out to be sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage, The Edmund L. Levy, 128 F. 683 (2d Cir. 1904), and the mere happening of an accident does not raise any presumption of fault or negligence on the part of the tug. Southgate v. Eastern Transp. Co., 21 F.2d 47 (4th Cir. 1927). Libelant quite properly concedes that in order to hold respondent liable it has the burden of proving negligence in the manner in which the barge was handled. Stevens v. The White City, supra. Libel-ant contends that respondent was negligent in one or more of the following respects: (1) failure to ballast the barge properly; (2) towing the barge at an excessive speed for existing conditions; (3) towing the barge directly into the seas, which increased the wave action on the bow; and (4) failure to follow a coastwise route so as to be closer to available ports of refuge. We will examine each of these contentions separately. (1) Ballasting. The testimony is undisputed that the decision as to whether or not to ballast the BA 2012 was to be left to the tug master’s discretion, and it is also undisputed that he elected not to ballast the BA 2012 prior to the voyage. The only question is whether this failure to ballast constituted negligence on the part of respondent. Libelant’s expert witness," }, { "docid": "23685036", "title": "", "text": "MANTON, Circuit Judge. The barge Header was demised to the King Paint Manufacturing Company under the terms of the following letter: “Kent Avenue, S. 9th, and S. 10th Sts., “Brooklyn, N. Y., June 2, 1916. “Mr. J. Mulvaney, Summit, Columbia Heights, Brooklyn — Hear Sir: Confirming our numerous telephone conversations with both you and Mr. Murphy this letter will confirm the charter of barge Header for a period of six months from June 2d at a monthly rental of $300.00 per month for bare boat, barge to be returned to you in same condition as received with the usual wear and tear. “Charter money to bo paid every thirty days. “Thanking you for your courtesy in this matter and with kindest regards, we remain, “Very truly yours, King Paint Mfg. Co., “Per Robert M. King.” On June 2d, the King Paint Manufacturing Company subchartered the barge to the Simmons Transportation Company under the same terms, except that the rental was fixed at $387.50 per month. The barge was delivered on the same day, direct from the libelant. While thus navigated, under the terms of this charter, and on June 30, 1916, the barge was damaged by reason of the Black Tom disaster, which, concededly, was without fault on the part of the charterers. The resulting loss to libelants amounted to $599.90. A survey held on November 29th showed the chime log was split, a bottom plank was broken, and a doorsill was split. The bottom plank was damaged by the explosion at the Black Tom dock, hut the evidence is not clear as to how the damage to the chime log occurred or as to how the door sill was split. The district judge found that the damaged chime log could be seen only when the vessel was in dry dock, and rejected the testimony that it was in good condition when seen, as claimed by the witness Pritchard, in August. The record is barren of proof as to an occurrence which would cause injury while the vessel was under charter to the respondent Simmons Transportation Company. Capt. Olson, who" } ]

[ { "docid": "22787064", "title": "", "text": "more than fourteen months after his conviction was final, suggests a lack of due diligence. Here, the district court advised Petitioner exactly why it dismissed his two earlier petitions without prejudice. We must assume, since Petitioner has not argued to the contrary, that Petitioner was well aware of the date that his direct appeal was decided and his obligation to file a timely petition for the writ of habeas corpus, as demonstrated by the filing of his two earlier petitions. Absent a satisfactory explanation for his failure to timely file his habeas petition, Petitioner has failed to exercise due diligence in pursuing his claim; Petitioner’s case is therefore not appropriate for the doctrine of equitable tolling. CONCLUSION While the doctrine of equitable tolling may be invoked to toll the one-year limitation period applicable to § 2255 habeas petitions, Petitioner has failed to demonstrate that his case presents circumstances appropriate for applying the doctrine. Accordingly, we AFFIRM the district court’s order dismissing Petitioner’s habeas petition. . Every circuit that has decided this issue has held that the one-year limitation period under § 2255 (or § 2244) is a statute of limitations, subjecL to the doctrine of equitable tolling, rather than a jurisdictional requirement. See Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th Cir.2000) (holding one-year limitation period under § 2244 subject to equitable tolling); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (same); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999) (same); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.1999) (holding that one-year limitation period under § 2255 is subject to equitable tolling); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir.1999) (same); Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998) (holding one-year limitation period under § 2244 subject to equitable tolling); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 617-18 (3d Cir.1998) (same); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 128 F.3d 1283, 1288(9th Cir.1997) (same), overruled on other grounds by 163 F.3d 530 (9th Cir.1998) (en banc )." } ]

[ { "docid": "22787045", "title": "", "text": "pending before this Court. On April 13,1999, Petitioner filed a third habeas petition. On May 4, 1999, the government filed a motion to dismiss or, in the alternative, for an extension of time to respond. In its motion to dismiss, the government argued that Petitioner’s habe-as petition was untimely because it was filed more than one year after his conviction became final, which was February 9, 1998. Counsel was appointed to represent Petitioner on May 5, 1999. Thereafter, Petitioner’s counsel filed a response to the government’s motion to dismiss. The district court referred the matter to a magistrate judge, the Honorable Joe B. Brown, who, on September 21, 1999, issued a Report and Recommendation in which he recommended that the habeas petition be dismissed because it was time-barred by the one-year limitation period prescribed by 28 U.S.C. § 2255. The district court overruled Petitioner’s objections to the Re port and Recommendation and adopted it in its entirety. On October 12, 1999, the district court dismissed Petitioner’s habeas petition with prejudice. Petitioner filed a timely notice of appeal. The district court granted a certificate of appealability on November 29, 1999, to address the issue of whether equitable tolling is applicable to the one-year limitation period under § 2255 and whether equitable tolling would be appropriate in the instant case. DISCUSSION I. We review the district court’s decision to grant or deny a writ of habeas corpus de novo; however, the district court’s factual findings will not be disturbed unless they are clearly erroneous. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). Questions of statutory construction are also reviewed de novo. Jordan v. Mich. Conference of Teamsters Welfare Fund, 207 F.3d 854, 858 (6th Cir.2000). The question now before this Court is whether the one-year limitation period applicable to § 2255, and similarly § 2254, habeas petitions is a statute of limitations subject to equitable tolling or a jurisdictional prerequisite which bars review by the federal courts if it is not satisfied. Although we have encountered this question before, we have yet to answer it definitively. See, e.g., Doran v. Birkett," }, { "docid": "23311950", "title": "", "text": "However, we have recognized that the one-year period of limitations in § 2244(d)(1) of the AEDPA for filing the analogous § 2254 petition is not a jurisdictional bar and can be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998). Although Davis involved the limitations period in § 2244(d)(1), applicable to § 2254 petitions, not § 2255 motions, we have recognized that the limitations provisions for §§ 2254 and 2255 are “nearly identical.” Flores, 135 F.3d at 1002 n. 7. We further explained that because of the similarity of the actions brought pursuant to §§ 2254 and 2255, the federal courts have read them in pari materia as long as the context did not render it improper. Id. Additionally, other circuits have held that the statute of limitations in § 2255 is subject to equitable tolling. See e.g., Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). As Flores instructs, we follow Davis’s interpretation of the limitations provision for § 2254 and likewise conclude that the statute of limitations in § 2255 may be equitably tolled in “rare and exceptional circumstances.” Davis, 158 F.3d at 811. “The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). “ ‘Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.’ ” Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). We review a district court’s decision with respect to equitable tolling for abuse of discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). Nonetheless, “[w]e must be cautious not to apply the statute of limitations too harshly.” Id. We are mindful that dismissing a first § 2255 motion or habeas petition is a “particularly serious matter.” Id. (citation and internal quotation marks omitted). To apply the doctrine of equitable tolling, we look to the facts and circumstances of each case. Id." }, { "docid": "22342490", "title": "", "text": "only is this interpretation uniformly followed in other circuits, but it also comports with the goal of the AEDPA to prevent undue delays in federal habeas review. If the one-year period began anew when the state court denied collateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court. The district court therefore correctly dismissed Smith’s habeas petition. II. Equitable tolling Smith argues in the alternative that we should exercise our equitable powers to excuse his delay in filing his federal habeas petition. The state responds that even assuming equitable tolling applies, Smith did not meet the high threshold for obtaining this relief because he did not act diligently to pursue his ineffective assistance of appellate counsel claim in either state or federal court. We have not determined whether equitable tolling applies to the one-year statute of limitations contained in Section 2244(d) or the grace period announced in Ross v. Artuz. However, other circuits considering this issue uniformly have held that the one-year period is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc), cert. denied, 525 U.S. 891, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 525 U.S. 891, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). We join our sister circuits and also adopt this rule. Equitable tolling applies only in the “rare and exceptional circumstance[ ].” Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, — U.S.-, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999). In order to equitably toll the one-year period of limitations, Smith must show that extraordinary circumstances prevented him from filing his petition on time. See Johnson v. Nyack Hosp., 86 F.3d 8," }, { "docid": "2796134", "title": "", "text": "Corrections, 145 F.3d 616, 618 (3d Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000) (concluding that § 2244(d) is subject to equitable tolling, at least in principle); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in \"rare and exceptional circumstances”), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc) (\"[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (\"It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.”), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). . See Lucidore v. New York State Division .of Parole, 209 F.3d 107, 113 (2d Cir.2000) (rejecting facial challenge to AEDPA’s statute of limitation because it leaves petitioners with some reasonable opportunity to have their claims heard on the merits and, therefore, \"the limitations period does not render the habeas remedy 'inadequate or ineffective to test the legality of detention,’ and therefore does not per se constitute an unconstitutional suspension of the writ.”), petition for cert. filed, 69 U.S.L.W. 3086 (Jul. 5, 2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (holding that, where petitioner does not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (per curiam) (\"The 1-year limitations period of the AEDPA does not violate the Suspension Clause unless it renders the habe-as remedy inadequate or ineffective to test the legality of detention. Molo [who failed to show factual innocence] has not shown how the limitations period" }, { "docid": "2796133", "title": "", "text": ". We note that in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), the Supreme Court vacated a decision of this Court which dismissed a first habeas petition for \"special ad hoc 'equitable' reasons not encompassed within the framework of Rule 9,\" in particular, that petitioner had waited almost six years, and until the last minute, to file a federal habeas petition. Id. at 322, 116 S.Ct. at 1298. The Supreme Court held that such a petition is governed by the Habeas Corpus Rules, not by generalized equitable considerations. See id. at 332, 116 S.Ct. at 1303. Thus, it is clear that Rule 9, rather than any equitable doctrine, provided the only form of \"time limitation” for first federal habeas petitions prior to the enactment of AEDPA. . This is consistent with what our sister circuits have held. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (stating that the limitation period for filing habeas petitions may be equitable tolled in extraordinary circumstances); Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618 (3d Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000) (concluding that § 2244(d) is subject to equitable tolling, at least in principle); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in \"rare and exceptional circumstances”), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc) (\"[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (\"It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.”), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). . See Lucidore v. New" }, { "docid": "23495335", "title": "", "text": "Turner also makes an argument that the limitations period should be equitably tolled. This court has held that equitable tolling, can apply to the limitation period of § 2244(d). Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998), cert. denied — U.S.-, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling, however, should apply only in “rare and exceptional circumstances.” Id. at 811. We have held that neither a plaintiffs unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.1991) (age discrimination case). It is irrelevant whether the unfamiliarity is due to illiteracy or any other reason. Id. Turner does not indicate why he waited until March 1998 to pursue federal habeas corpus relief. He does not allege that he was unaware of any of his substantive claims until such time, and he does not allege that officials prevented him from seeking relief. Turner has failed to demonstrate that equitable tolling should apply to his case. The district court therefore did not err by dismissing Turner’s petition as time-barred. Finally, Turner makes the argument that § 2254(d) is unconstitutional because it violates the Suspension Clause. The Suspension Clause, art. 1, § 9, cl. 2, states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In United States v. Brierton, we rejected this argument made by a § 2255 movant. 168 F.3d 486, No. 98-10382 (5th Cir. Jan. 12, 1999) (unpublished). In that case, we distinguished between a habeas petition brought under § 2254 and motions to correct sentences brought under § 2255. Id. at 3-5. We held that, because a § 2255 motion does not amount to a habeas proceeding, Brierton’s argument that § 2244(d) violated the Suspension Clause was without merit. In Sonnier v. Johnson, Sonnier, a § 2254 petitioner, argued that § 2244(d) violated the Suspension Clause. 161 F.3d 941, 946 (5th Cir.1998). He also argued that the district court had" }, { "docid": "22342491", "title": "", "text": "is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc), cert. denied, 525 U.S. 891, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 525 U.S. 891, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). We join our sister circuits and also adopt this rule. Equitable tolling applies only in the “rare and exceptional circumstance[ ].” Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, — U.S.-, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999). In order to equitably toll the one-year period of limitations, Smith must show that extraordinary circumstances prevented him from filing his petition on time. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996) (noting that this court has applied equitable tolling doctrine “ ‘as a matter of fairness’ where a plaintiff has been ‘prevented in some extraordinary way from exercising his rights ....’”) (citation omitted). In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll. See id. Smith claims that he is entitled to equitable relief because (1) he could not file his federal petition until he exhausted his state remedies; and (2) he diligently filed his state coram nobis petition and then filed his federal habeas petition only 87 days after the state denied collateral relief. Petitioner-appellant raised both of these arguments in the district court. Smith’s case does not present extraordinary or exceptional circumstances warranting equitable tolling. Smith’s delays in seeking collateral review of his convic tion do not show reasonable diligence. In addition, the tolling provision of Section 2244(d)(2) already accommodates the exhaustion requirements that prisoners face, so the mere fact that Smith exhausted his claims in the coram nobis petition does" }, { "docid": "22546063", "title": "", "text": "Mr. Gibson filed a timely appeal, the limitations period did not resume running until the state appellate court affirmed the denial of post-conviction relief on June 25, 1997, leaving Mr. Gibson 185 days to file his federal habeas petition. Mr. Gibson waited, however, for almost one year, filing his federal habeas petition on May 20, 1998. Hence, Mr. Gibson’s federal habeas petition is clearly time barred under AED-PA’s statute of limitations, 28 U.S.C. § 2244(d)(1). D. Equitable Tolling Mr. Gibson also argues that the limitations period should be equitably tolled because he was unable to secure a copy of AEDPA and because the state court concluded that his failure to appeal the denial of post-conviction relief within the statutory time limit was not his fault. We will address Mr. Gibson’s first argument regarding his inability to obtain a copy of AEDPA but will not address his second argument regarding the state court’s decision because he did not present it to the district court. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000) (refusing to reach petitioner’s equitable tolling argument because he did not raise it in the district court). AEDPA’s one-year statute of limitations is subject to equitable tolling but only “in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert, denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling would be appropriate, for example, when a prisoner is actually innocent, Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert, denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998), when an adversary’s conduct — or other uncontrollable circumstances — -prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period, Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Simple excusable neglect is not sufficient. Id. at 96, 111 S.Ct. 453. Moreover, a petitioner must diligently pursue his federal habeas claims; a claim of insufficient access" }, { "docid": "22787047", "title": "", "text": "No. 99-1639, 2000 WL 282882 (6th Cir. Mar.13, 2000); Sluder v. United States, No. 98-5158, 1998 WL 940246 (6th Cir. Dec.23, 1998). We now join our sister circuits that have to date addressed this issue and hold that the one-year limitation period is a statute of limitation. Because there is a rebuttable presumption that equitable tolling applies to statutes of limitation and there is no indication that Congress did not intend for equitable tolling to apply to the limitation period in habeas cases, the one-year statute of limitations in § 2255 is subject to equitable tolling. See, e.g., Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Federal prisoners may file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255; however, the habeas petition is subject to a one-year period of limitation. Under § 2255, A[one]-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by government action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255. To determine whether the limitation period in § 2255 is a statute of limitations or a jurisdictional requirement, we must consider the language of the statute, the legislative history and the statutory purpose. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998). As most other" }, { "docid": "22787046", "title": "", "text": "of appeal. The district court granted a certificate of appealability on November 29, 1999, to address the issue of whether equitable tolling is applicable to the one-year limitation period under § 2255 and whether equitable tolling would be appropriate in the instant case. DISCUSSION I. We review the district court’s decision to grant or deny a writ of habeas corpus de novo; however, the district court’s factual findings will not be disturbed unless they are clearly erroneous. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). Questions of statutory construction are also reviewed de novo. Jordan v. Mich. Conference of Teamsters Welfare Fund, 207 F.3d 854, 858 (6th Cir.2000). The question now before this Court is whether the one-year limitation period applicable to § 2255, and similarly § 2254, habeas petitions is a statute of limitations subject to equitable tolling or a jurisdictional prerequisite which bars review by the federal courts if it is not satisfied. Although we have encountered this question before, we have yet to answer it definitively. See, e.g., Doran v. Birkett, No. 99-1639, 2000 WL 282882 (6th Cir. Mar.13, 2000); Sluder v. United States, No. 98-5158, 1998 WL 940246 (6th Cir. Dec.23, 1998). We now join our sister circuits that have to date addressed this issue and hold that the one-year limitation period is a statute of limitation. Because there is a rebuttable presumption that equitable tolling applies to statutes of limitation and there is no indication that Congress did not intend for equitable tolling to apply to the limitation period in habeas cases, the one-year statute of limitations in § 2255 is subject to equitable tolling. See, e.g., Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Federal prisoners may file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255; however, the habeas petition is subject to a one-year period of limitation. Under § 2255, A[one]-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of— (1) the date on which the" }, { "docid": "22787065", "title": "", "text": "the one-year limitation period under § 2255 (or § 2244) is a statute of limitations, subjecL to the doctrine of equitable tolling, rather than a jurisdictional requirement. See Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th Cir.2000) (holding one-year limitation period under § 2244 subject to equitable tolling); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (same); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999) (same); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.1999) (holding that one-year limitation period under § 2255 is subject to equitable tolling); Moore v. United States, 173 F.3d 1131, 1134 (8th Cir.1999) (same); Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998) (holding one-year limitation period under § 2244 subject to equitable tolling); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 617-18 (3d Cir.1998) (same); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 128 F.3d 1283, 1288(9th Cir.1997) (same), overruled on other grounds by 163 F.3d 530 (9th Cir.1998) (en banc ). Only one court has reached the opposite conclusion. See Giles v. United States, 6 F.Supp.2d 648, 649-50 (E.D.Mich.1998), aff'd on other grounds sub nom., United Stales v. Giles, No. 00-1040, 2000 WL 1720730 (6th Cir. Nov.8, 2000). . This Court has applied varying standards of review to a district court's decision to apply or not apply the doctrine of equitable tolling. Cf., e.g., Graham-Humphreys v. Memphis Broolcs Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.2000) (applying abuse of discretion standard of review to district court’s refusal to apply doctrine of equitable tolling to ninety-day limitations period in Title VII case), and Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir.1998) (same), with Rose v. Dole, 945 F.2d 1331, 1334 (6th Cir.1991) {per curiam) (acknowledging that application of the doctrine of equitable tolling is a question of law and thus subject to de novo review). Moreover, this Court has yet to address the proper standard when reviewing the applica-lion of the doctrine of equitable tolling in the context of a habeas peLition." }, { "docid": "19277472", "title": "", "text": "some kind of wrongful conduct, or (2) where extraordinary circumstances beyond the claimant’s control made it impossible to file the claims on time. Id. at 701. The court concluded that this was a “rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.” Id. A more common application of the doctrine of equitable tolling has taken place in cases involving the filing of writs of habeas corpus. The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), placed a one-year time limitation on filing a petition for a writ of habeas corpus in Federal courts after, among other things, final judgment. , At least eight Federal courts of appeal have recognized extraordinary circumstances as a basis for equitably tolling that one-year statute of limitations. See e.g., United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir,2000); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.1999) (per curiam); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288-89 (9th Cir.1997) [hereinafter Calderon /], overruled on other grounds by 163 F.3d 530 (9th Cir.1998) (en banc) [hereinafter Calderon II ], overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); see also Delaney v. Matesanz, 264 F.3d 7, 16 (1st Cir.2001) (per curiam) (noting, without explicitly holding that extraordinary circumstances may be a basis for equitable tolling, that “no extraordinary circumstances prevented the petitioner from protecting his own interests, so the district court did not abuse its discretion in declining to apply equitable tolling to resuscitate his time-barred habeas case”). These cases generally recognize that “extraordinary circumstances that are both beyond [a claimant’s], control and unavoidable even with diligence” will equitably toll a statute of limitations. Sandvik, 177" }, { "docid": "19277473", "title": "", "text": "1269, 1271-72 (11th Cir.1999) (per curiam); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288-89 (9th Cir.1997) [hereinafter Calderon /], overruled on other grounds by 163 F.3d 530 (9th Cir.1998) (en banc) [hereinafter Calderon II ], overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); see also Delaney v. Matesanz, 264 F.3d 7, 16 (1st Cir.2001) (per curiam) (noting, without explicitly holding that extraordinary circumstances may be a basis for equitable tolling, that “no extraordinary circumstances prevented the petitioner from protecting his own interests, so the district court did not abuse its discretion in declining to apply equitable tolling to resuscitate his time-barred habeas case”). These cases generally recognize that “extraordinary circumstances that are both beyond [a claimant’s], control and unavoidable even with diligence” will equitably toll a statute of limitations. Sandvik, 177 F.3d at 1271. The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit), however, expressly declined to adopt extraordinary circumstances as a basis for equitably tolling the one-year limitations under the AEDPA. See Dunlap v. United States, 250 F.3d 1001, 1007-09 (6th Cir.2001). In describing the cases in which other courts have, based on- extraordinary circumstances, equitably tolled the one-year statute of limitations under the AEDPA, the Sixth Circuit recognized its application both in habeas corpus cases and in civil cases: The courts that have applied the “rare and exceptional circumstances” or “extraordinary circumstances” test actually apply the test to all cases involving equitable tolling — not simply habeas cases. In fact, the Calderon [J] Court, in applying the test to the habeas case before it cited Alvarez-Machaini, supra], a civil case wherein the Plaintiff asserted claims under the Federal Tort Claims Act against the government and certain government officials for the proposition that equitable tolling should only be applied in extraordinary circumstances. Similarly, other cases applying the “extraordinary circumstances” and “rare and exceptional" }, { "docid": "22176409", "title": "", "text": "Government moved to dismiss the petition on the ground that it was untimely under § 2255’s period of limitations. A magistrate judge concluded, as this circuit later did, that § 2255’s period of limitations should be construed to provide those convicted before April 24, 1996 (the effective date of the amendment introducing the period of limitations) a full year after that date to file motions under § 2255. See Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir.1998). The district court agreed and dismissed the motion. Sandvik contends in this appeal that § 2255’s statute of limitations may be equitably tolled. He argues, moreover, that equitable tolling is justified in his case because the only reason the motion was late was his lawyer’s decision, only five days before the statute ran out, to send the motion from Atlanta to Miami by ordinary mail. We review the district court’s dismissal of Sandvik’s motion de novo because this issue is solely one of law. See United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir.1991). 2. Discussion To our knowledge, no court of appeals has held whether § 2255 permits equitable tolling on grounds apart from those specified in the statute. This field is not completely unploughed, however: A consensus is forming that the similar period of limitations found in 28 U.S.C. § 2244, which governs 28 U.S.C. § 2254 petitions, does permit equitable tolling. See Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, — U.S.-, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). These opinions all properly examine the language and intent of the statute itself to determine whether equitable tolling is available, as the Supreme Court has instructed us to do. See United States v. Beggerly, 524 U.S. 38,-, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998). Their reasons," }, { "docid": "22787056", "title": "", "text": "the inclusion of these exceptions makes it more apparent that “ ‘the drafters envisioned [the one-year limitation period] to function as a typical statute of limitations, rather than a jurisdictional limitation.’ ” 145 F.3d at 618 (citation omitted). Because we conclude that the rationale of our sister circuits is more sound than that of the court in Giles, we likewise reject the arguments advanced therein, and conclude that the one-year limitation period is a statute of limitation subject to the doctrine of equitable tolling. II. Although the one-year limitation period in § 2255 is subject to the doctrine of equitable tolling, we nevertheless find that under the circumstances of the case now before the Court, the district court properly declined to invoke the doctrine in Petitioner’s case. We review de novo the district court’s decision not to apply the doctrine of equitable tolling inasmuch as the facts in this case are undisputed and the district court determined as a matter of law that there were no grounds that would justify equitable tolling in Petitioner’s case. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Both Petitioner and Respondent urge this court to apply a different, although not necessarily divergent, standard when determining if equitable tolling is appropriate in habeas cases. In the lower court, the Magistrate Judge applied the “rare and exceptional circumstances” or “extraordinary circumstances” test that has been used by most other circuits addressing this issue. See e.g., Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (“AEDPA’s one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.’ ”) (citation omitted); Harris, 209 F.3d at 330; Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (same); Miller, 145 F.3d at 618 (equitable tolling only applies in “extraordinary circumstances”); Calderon, 128 F.3d at 1288 (equitable tolling would only be granted if “extraordinary circumstances” beyond prisoner’s control make it impossible to file a petition on time). Under this test, the statute of limitations may only be tolled where the circumstances are both beyond the petitioner’s control and unavoidable even with due diligence. Sandvik," }, { "docid": "22771111", "title": "", "text": "1997. See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997). Fisher’s petitions cannot be tolled for time spent in state post-conviction proceedings because his applications for post-conviction relief were not filed until after April 24, 1997, the end of the limitations period for convictions, like Fisher’s, which became final before the effective date of AEDPA. Given the foregoing, Fisher’s petitions can only be deemed timely if equitable tolling were, for some reason, to be applied, that is, a judicially-crafted stopping of the clock. “AEDPA’s one-year statute of limitations is subject to equitable tolling but only in ‘rare and exceptional circumstances.’ ” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (internal citation omitted); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) (holding equitable tolling appropriate only where failure to timely file caused by “extraordinary circumstances”), cert. denied, — U.S. -, 121 S.Ct. 1195, 149 L.Ed.2d 110 (2001); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000); Calderon v. United States Dist. Court for Cent. Dist. of Cal. (Kelly), 163 F.3d 530, 535 (9th Cir.1998) (en banc); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998). “The one-year time period begins to run in accordance with individual circumstances that could reasonably affect the availability of the remedy, but requires inmates to diligently pursue claims.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998). Fisher’s present counsel, Mr. Bounds, argues that the limitation period should be tolled because Fisher was, and always has been, incompetent and therefore unable to seek relief until Bounds was retained by Fisher’s mother, at which time, for the first time, someone of competence stepped in to recognize and deal with the myriad legal issues. Thus while almost three months after this Circuit’s April 24, 1997 AEDPA one-year grace period for convictions which became final before the law’s enactment" }, { "docid": "16434313", "title": "", "text": "Cir.2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999); Calderon v. United States Dist. Court (Calderon), 128 F.3d 1283, 1289 (9th Cir.1997); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999); cf. also Moore, 173 F.3d at 1134 (holding § 2255 is statute of limitation in case where equitable tolling was not at issue), the Seventh Circuit has questioned this conclusion even while applying it to a petition filed under § 2254, see Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999) (in view of “express tolling provisions [of 28 U.S.C. § 2244(d)(1) ] it is unclear what room remains for importing the judge-made doctrine of equitable tolling”), and at least one district court has disagreed entirely, see Giles v. United States, 6 F.Supp.2d 648, 649 (E.D.Mich.1998) (concluding that § 2255 is a limit on jurisdiction of court, not a statute of limitations, and therefore is not subject to equitable tolling). The circuits holding that § 2255 is subject to equitable tolling have announced some general principles for determining whether the facts in a particular case justify tolling the limitation. Equitable tolling, which is to be employed “only sparingly” in any event, see Irwin, 498 U.S. at 96, 112 L.Ed.2d 435, has been applied in the context of the AEDPA only if “ ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.” See Calderon, 128 F.3d at 1288. In the last-quoted case the court equitably tolled the time limit in § 2244(d)(1) because the prisoner’s lead counsel had withdrawn from the representation after accepting employment in another state and his successor as counsel was unable to use his work product. See also Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (equitably tolling time limit where prisoner submitted petition for mailing five days before deadline and petition was returned to him after deadline had passed). The Fifth Circuit has suggested several circumstances in which equitable tolling is not warranted. The prisoner’s ignorance of the law or unfamiliarity with the legal process will not" }, { "docid": "22197417", "title": "", "text": "state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, we will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1). In this case, Coleman’s pro se brief is entitled to liberal construction. Humphrey v. Cain, 120 F.3d 526, 530 n. 2 (5th Cir.1997). We may therefore liberally construe Coleman’s Houston v. Lack argument to be a contention that his submission for mailing of his application attacking the conviction in the February case on September 4, 1996, entitles him to equitable toling of the limitation period of § 2244(d)(1). The one-year limitations provision “does not operate as a jurisdictional bar and can, in appropriate exceptional circumstances, be equitably tolled.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). The district court in Davis had granted a death row habeas petitioner several extensions between February 1997 and May 1998 to file his § 2254 petition, but then denied the petition as untimely. See id. at 808. Without formulating specific requirements for determining whether equitable tolling principles should apply in the § 2244(d) context, this court concluded that the petitioner in his COA application had made a credible showing that the district court erred in dismissing his petition as untimely. Id. at 812. Davis thus did not involve circumstances like those in Coleman’s case, in which Coleman essentially contends that delays in the processing of his state court postconviction application prevented him from complying with the one-year limitations period. “The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996). A “ ‘garden variety claim of excusable neglect’ ”" }, { "docid": "22175358", "title": "", "text": "to petition a federal court for habeas relief. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir.1998) (holding that the limitations period for convictions becoming final before AEDPA’s effective date ends April 24, 1997); accord Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998). Davis failed to file his federal habeas claim until' May 1998, after the limitations period had run, and the district court therefore dismissed his petition as time-barred. Davis argues that the district court failed to consider whether the AEDPA limitations period should have been equitably tolled, and that his case presents an appropriate circumstance in which to equitably toll the statute of limitations to allow his habeas claim to proceed. In order to decide the question of whether the AEDPA limitations period should have been equitably tolled in this case, we must first determine whether the period is a statute of limitations or a jurisdictional bar. If the one-year filing period in § 2244(d)(1) is a limitation on the jurisdiction of federal courts, then federal courts lack the power to extend the period to allow for late adjudication of claims. However, if the AEDPA period is a statute of limitations, courts can, in extraordinary circumstances, allow late claims to proceed under the doctrine of equitable tolling. “The doctrine of equitable tolling preserves a plaintiff’s claims when strict application of the statute of limitations would be inequitable.” Lambert v. United States, 44 F.3d 296, 298 (5th Cir.1995) (citing Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965)). Whether AEDPA’s one-year limitations period limits federal court jurisdiction or is subject to equitable tolling is a question of first impression for this circuit. See Henderson v. Johnson, 1 F.Supp.2d 650, 653 (N.D.Tex.1998). The only circuit courts to have considered the question have held that the AEDPA limitations period is not a jurisdictional bar. See Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, No. 98-5195, 1998 WL 407280 (Oct. 5, 1998); Calderon v." }, { "docid": "17816314", "title": "", "text": "would find it debatable whether the district court erred in finding his 28 U.S.C. § 2255 motion time-barred,” this court concluded that Wynn “made a substantial showing of the denial of a constitutional right” and granted his motion for COA on the issue whether reliance of counsel’s representation that a § 2255 motion has been filed is sufficient to warrant equitable tolling and, if so, for how long. II. A district court’s decision with respect to equitable tolling is reviewed for abuse of .discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). The statute of limitations must not be applied too harshly. Id. Dismissing a first § 2255 motion or habeas petition is a “particularly serious matter.” Id. In applying the doctrine of equitable tolling, we must examine the facts and circumstances of each particular case. III. The one-year limitations period of the AEDPA is a statute of limitations that is not jurisdictional and is therefore subject to equitable tolling. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling is permissible only in “rare and exceptional circumstances.” Id. This circuit has found several circumstances not to warrant equitable tolling: a prisoner’s pro se status, inadequate prison library (Fielder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000), citing United States v. Flores, 981 F.2d 231, 236 (5th Cir.1993)); allegation of 43 days late notice of effectiveness of the AEDPA and 17 days in psychiatric evaluation (Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.1999)). This court has found equitable tolling when a petitioner was misled by the district court that upon dismissing an earlier timely petition without prejudice he would be allowed to refile at a later date. United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir.2000). This court has also remanded a case to the district court for a hearing to determine if a petitioner can establish facts in support of his allegations for equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000) (Petitioner alleged late notice of denial of state habeas" } ]

[ { "docid": "3722547", "title": "", "text": "having a deficit in accumulated earnings and profits as of the close of the preceding taxable year”) within the meaning of Section 26(c) (3), and that it was entitled to the credit of that section because it was prohibited from paying dividends by the law of Missouri where it is domiciled. The Tax Court held, in accord with Treasury Regulation 94, Rev.Acts 1936, 1942, Art. 26 — 2 [as amended by T.D. 5263, 1943 Cum.Bull. 1003, 1005, 1006] (d), that the non-taxable stock dividends distributed by the taxpayer did not serve to reduce the earnings and profits of the taxpayer, and that it had not become a deficit corporation within the meaning of the Act. The Regulation follows exactly the explanation of the true intent of Section 26(c) (3) made by the Senate Committee Report upon which it was enacted by the Congress. S.Rep. No. 1631, 77 Cong. 2d Sess. pp. 245-246. It is here argued, as it was before the Tax Court, that the meaning of “a corporation having a deficit in accumulated earnings and profits,” appearing in Section 26(c) (3), ought to be determined by Missouri law and prohibitions against distribution by corporations which, it is asserted, exist under that law. We are in accord with the Tax Court’s reasoning and decision and think it rightly sought the true intent of the surtax on undistributed profits law in the federal enactment. Section 115(h) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 870, declaring that the distribution of non-taxable stock dividends shall not be considered a distribution of earnings or profits of any corporation, precludes the reduction of the earnings and profits of a corporation on account of such non-taxable stock dividends so as to effect the deficit under Section 26(c) (3) for which credit is given by the section, and this taxpayer was therefore not a deficit corporation entitled to the credit it claimed as such. We do not consider Bedford’s Estate v. Commissioner, 2 Cir., 144 F.2d 272, relied on by petitioner, to be applicable here. It arose under different statutory provisions and did not" } ]

[ { "docid": "23658545", "title": "", "text": "U.S. 280, 288, 66 S.Ct. 532, 90 L.Ed. 670. The taxpayer’s motive to avoid taxation will not establish liability if the transaction does not do so without it. Chamberlain v. Commissioner of Internal Revenue, 6 Cir., 207 F.2d 462; United States v. Cummins Distilleries Corp., 6 Cir., 166 F.2d 17, 20; Helvering v. Chisholm, 296 U.S. 641, 56 S.Ct. 174, 80 L.Ed. 456; United States v. Cumberland Public Service Co., 338 U.S. 451, 455, 70 S.Ct. 280, 94 L.Ed. 251. The question accordingly presented is not whether the overall transaction, admittedly carried out for the purpose of avoiding taxes, actually avoided taxes which would have been incurred if the transaction had taken a different form, but whether the sale constituted a taxable dividend or the sale of a capital asset. Chamberlain v. Commissioner of Internal Revenue, supra. It is a salutary fact that Section 115 (c) is an exception to Section 115(a) that all distributions of earning and profits are taxable as a dividend. The basic precept underlying the capital gains theory of taxation as distinguished from ordinary income tax is the concept that a person who has developed an enterprise in which earnings have been accumulated over a period of years should not be required to expend the ordinary income tax rate in the one year when he withdraws from his enterprise and realizes his gain. Common logic dictates that a fair basis of measuring income is not determined upon the profits on hand in the year of liquidation but is properly attributable to each year in which the profits were gained. We cannot concur with the legal proposition enunciated by the District Court that a corporate distribution can be essentially equivalent to a taxable dividend even though that distribution extinguishes the shareholder’s interest in the corporation, To the contrary, we are satisfied that where the taxpayer effects a redemption which completely extinguishes the taxpayer’s interest in the corporation, and does not retain any beneficial interest whatever, that such transaction is not the equivalent of the distribution of a taxable dividend as to him. Tiffany v. Commissioner of Internal" }, { "docid": "23495423", "title": "", "text": "62 L.Ed. 1054. Other corroborating evidence is reviewed in the Tax Court’s opinion and need not be repeated here. The here pertinent language of § 115 (g) has been in the revenue statutes since 1926, and over the years the courts have searched for some sure touchstone that would tell when it is that a distribution in partial redemption is “essentially equivalent” to the payment of a dividend. The search has been in vain. It was once widely supposed that in order to invoke the statute an intent to avoid taxes had to be shown. Patty v. Helvering, 2 Cir., 1938, 98 F.2d 717; Commissioner of Internal Revenue v. Cordingley, 1 Cir., 1935, 78 F.2d 118. It was thought that a legitimate business purpose for the partial redemption was enough to avoid the inpact of the statute’s provisions. Bona Allen, Jr., 1940, 41 B.T.A. 206; Commissioner of Internal Revenue v. Champion, 6 Cir., 1935, 78 F.2d 513. Then, in the light of the Supreme Court’s opinion in Commissioner of Internal Revenue v. Bedford’s Estate, 1945, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611, the pendulum swung the other way, and it was even suggested that the only test might be the mere existence of earnings and profits. Kirschenbaum v. Commissioner, 2 Cir., 1946, 155 F.2d 23, 170 A.L.R. 1389. As soon perceived, however, the question could not be so simply resolved. For if Section 115(c) prescribing capital gain treatment for redemption of stock in partial liquidation is to have any application, not all stock redemption cases can be disposed of by simple reference to the availability of earnings and profits. Commissioner of Internal Revenue v. Snite, 7 Cir., 1949, 177 F.2d 819. In Flanagan v. Helvering, 1940, 73 App.D.C. 46, 116 F.2d 937, 939, 940, Judge (later Chief Justice) Vinson wrote that it is the “net effect of the distribution rather than the motives and plans of the taxpayer or his corporation,” that is “the fundamental question in administering § 115(g).” Yet it has been said that “the net-effect test is not a test but an attractive abbreviation of" }, { "docid": "13831409", "title": "", "text": "in allowing Section 112 to remain in the 1934 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, page 692, was to permit, tax free, “legitimate reorganizations required in order to strengthen the financial condition of the corporation. * * * ” ln the light of these requirements, we believe the Tax Court, applying the proper criterion, reached the correct conclusion. This was not the kind of corporate reorganization which Congress intended to make tax free. We come now to the second point of departure. The precise question is whether the Tax Court’s conclusion that this was a distribution essentially equivalent to a distribution of a taxable dividend may stand in view of the absence of a corresponding reduction in the surplus account. In determining tax liability, bookkeeping entries are not necessarily conclusive. Income tax liability does not stand or fall with the particular method adopted by corporate accountants . in reflecting transactions under scrutiny. Here again, actions count. What was accomplished by the transaction? The Tax Court inquired and found that what ’appears to be a distribution out of capital is in reality made out of accumulated earnings and profits. If over the years since February 28, 1913, the corporation piled up earnings and, qua bookkeeping, imprisoned them in the capital account through the issuance of nontaxable stock dividends, a subsequent distribution in money or bonds of an amount not in excess of such accumulated earnings and profits can partake of the quality of a dividend distribution. Section 115(b), “every distribution is made out of earnings or profits to the extent thereof.” Corporate accounting concepts are not controlling. Commissioner v. Estate of Bedford, 1945, 325 U.S. 283, 65 S.Ct. 1157; Commissioner v. Wheeler, 1945, 324 U.S. 542, 65 S. Ct. 799; cf. Helvering v. Gowran, 1937, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224. Once it is concluded that the debentures were distributed out of earnings or profits accumulated since February 28, 1913, taxation must result. To hold otherwise would be to permit, by means of bookkeeping entries, the use of the Section 112 exemption as a device to evade the payment" }, { "docid": "13827589", "title": "", "text": "or profits accumulated after February 28, 1913, although $8.5511 of each $9 was paid out of such earnings and profits which had been • capitalized prior to July 1, 1925 by nontaxable stock dividends, and in turn placed in a capital surplus account by a reduction in the par value of the stock from $100 to $25.' This presents the question whether such a capitalization of earnings and profits removes them from the purview of §§ 115(a) and (b), by changing them from earnings into capital. § 115(h) of the Internal Revenue Code, 26 U.S.C.A. Int. Rev.Code, § 115(h), provides that the distribution to a distributee by a corporation of its stock “shall not be considered a distribution of earnings or profits * * * if the distribution was not subject to tax in the hands of such distributee because it did not constitute income to him within the meaning of the Sixteenth Amendment to the Constitution.” Under the ruling in Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570, a stock dividend (common on common) is accordingly not a distribution of earnings. Chapman Price Steel Company v. Commissioner, 7 Cir., 146 F.2d 189, certiorari denied, 325 U.S. 876, 65 S.Ct. 1557, 89 L.Ed. 1993. Such earnings are available for future distribution as dividends. Walker v. Hopkins, Collector, 5 Cir., 12 F.2d 262, certiorari denied 271 U.S. 687, 46 S.Ct. 638, 70 L.Ed. 1152; Wilcox v. Commissioner, 9 Cir., 137 F.2d 136; Beretta v. Commissioner, 5 Cir., 141 F.2d 452. See Commissioner v. Estate of Bedford, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611. The rulings of the Second Circuit in Commissioner v. Quackenbos, 78 F.2d 156, Patty v. Helvering, 98 F.2d 717, and Bedford’s Estate v. Commissioner, 144 F.2d 272, indicating a contrary view have been recently overruled by the decision in Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23, and by the reversal of Bedford’s Estate v. Commissioner by the Supreme Court in Commissioner v. Estate of Bedford, supra. Petitioner contends that a proper construction of § 115(h) of the Internal" }, { "docid": "4726462", "title": "", "text": "Company therefore remained the earnings and profits of Metropolitan Properties Company, adequate in 1939 to cover the distributions here in question. Whatever the reason for the amendment of section 115(h) in 1938, which added the words “or of property or money”, the simple words of the statute show that from the taxable year 1938 on, any distribution by a parent corporation out of earnings or profits of its subsidiary liquidated prior to 1938 under section 112(b) (6) is a taxable dividend within the meaning of the Federal statute. The controlling law is that contained in the Internal Revenue Code, and the applicable section which specifically governs the problem is 115(h) as amended by the 1938 Act. The provisions of this section seem to clearly indicate that after a tax-free liquidation under section 112(b) (6) the earnings or profits of the subsidiary retain their character in the hands of the parent and are available for the distribution of taxable dividends. Since the distribution took place in 1939 it was covered by the then effective and existing provisions of the Internal Revenue Code. Revenue Acts are not unconstitutional merely because they are retroactive in applying a tax. Welch v. Henry, 305 U.S. 134, 59 S.Ct. 121, 83 L.Ed. 87, 118 A.L.R. 1142; Wheeler v. Commissioner, 9 Cir., 143 F.2d 162. This court has upheld the Congressional power to define current taxable income by changing the basis of property already in the hands of the taxpayer. Osburn California Corp. v. Welch, 9 Cir., 39 F.2d 41, cert. denied, 282 U.S. 850, 51 S.Ct. 28, 75 L.Ed. 753. See also Newman, Saunders & Co. v. United States, 36 F.2d 1009, 68 Ct.Cl. 641, certiorari denied, 281 U.S. 760, 50 S.Ct. 460, 74 L.Ed. 1169; Lawler v. Commissioner, 9 Cir., 78 F.2d 567; Martz v. Commissioner, 82 F.2d 110. The decision of the Tax Court is correct and is affirmed." }, { "docid": "18158425", "title": "", "text": "such stock was issued as a stock dividend) at such time and in such manner as to make the distribution and cancellation or redemption in whole or in part essentially equivalent to the distribution of a taxable dividend, the amount so distributed in redemption or cancellation of the stock, to the extent that it represents a distribution of earnings or profits accumulated after February 28, 1913, shall be treated as a taxable dividend. * # * * * “(i) Definition of partial liquidation. As used in this section the term ‘amounts distributed in partial liquidation’ means a distribution by a corporation in complete cancellation or redemption of a part of its stock, or one of a series of distributions in complete cancellation or redemption of all or a portion of its stock. “(j) Valuation of dividend. If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder. * * * ” . The Court of Appeals for the Second Circuit in 1938 took the extreme position, in Patty v. Helvering, 98 F.2d 717, that § 115(g) could never apply when the shares involved were originally issued in good faith. It later abandoned this position, however, in Kirschenbaum v. Commissioner, 2 Cir., 1946, 155 F.2d 23, 170 A.L.R. 1389, on the ground that the Supreme Court in Commissioner of Internal Revenue v. Estate of Bedford, 1945, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611 although considering another section of the code, in effect overruled its decision in the Patty case. . Treasury Regulation 111, § 29.115-9. “Distribution in Redemption or Cancellation of Stock Taxable as a Dividend.— “The question whether a distribution in connection with a cancellation or redemption of stock is essentially equivalent to the distribution of a taxable dividend depends upon the circumstances of each case. A cancellation or redemption by a corporation of a portion of its stock pro" }, { "docid": "4726376", "title": "", "text": "a time specified in the plan. Amounts distributed in “partial liquidation” are specifically defined as distributions by a corporation (1) in complete cancellation or redemption of a part of its stock, or (2) one of a series of distributions in complete cancellation or liquidation of all or a portion of its stock. Section 115 (i). Amounts so distributed in “partial liquidation” which are properly chargeable to capital account shall not be considered a distribution of earnings or profits under Section 115(b). Rheinstrom v. Conner, 6 Cir., 125 F.2d 790, certiorari denied 317 U.S. 654, 63 S.Ct. 49, 87 L.Ed. 526. However, it is the substance of the transaction which .determines tax-ability, and if a corporation cancels or redeems its stock at such time and in such manner as to make the transaction in whole or in part essentially equivalent to the distribution of ordinary taxable dividends, it shall be so treated to that extent. Flanagan v. Helvering, 73 App.D.C. 46, 116 F.2d 937; Rheinstrom v. Conner, supra; Paul Mertons, Vol. 1, Sec. 8.91 and 9.95; Mertons, Sec. 9.82 and 9.83. It is said that the question whether a dividend is a distribution in liquidation is one of fact to be judged by substance rather than form — by the ultimate effect of the distribution and not by the motives of the taxpayer or the corporation. Beretta v. Commissioner of Internal Revenue, 5 Cir., 141 F.2d 452, certiorari denied 65 S.Ct. 50; Rheinstrom v. Conner, supra; Tate v. Commissioner of Internal Revenue, 8 Cir., 97 F.2d 658, certiorari denied, 305 U.S. 639, 59 S.Ct. 106, 83 L.Ed. 412; Flanagan v. Helvering, supra; Tootle v. Commissioner of Internal Revenue, 8 Cir., 58 F.2d 576; Mertons, Vol. 1, Sec. 9.82 and 9.83. Whether the plan is for complete or partial liquidation, the distributions must be made in complete redemption of all or a portion of the stock, and distributions which do not actually result in the redemption or cancellation of the corresponding stock of the corporation cannot be considered as “liquidating dividends” within the. meaning of Section 115(c), although such distributions may exceed" }, { "docid": "17081802", "title": "", "text": "stockholders was lessened in amount and the proportionate holding of the other stockholders increased. In this connection the commissioner cites also Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23, 170 A.L.R. 1389, in which the court recognized that it had been in error in its former interpretation of Section 115 (g). But the court did not in that case pass upon the question before us. It refused to define the precise limitations under which proceeds of sale are taxable under Section 115(g) or those under which they are not taxable. Bazley v. Commissioner, 331 U. S. 737, 67 S.Ct. 1489, 91 L.Ed. 1782, 173 A.L.R. 905, likewise relied upon by the commissioner did not involve Section 115(g). It ■involved a section governing recapitalizations and reorganizations and held that the recapitalization in question was a paper recapitalization- whereby the stockholder received pro rata distribution of debentures, equivalent in all respects to a distribution in the nature of a dividend. The Tax Court disposed of these ■citations by the following remarks: “Respondent insists it is now established law that the net effect of the transaction, rather than the motives and purposes of the corporation or its stockholders, is the test of taxability. It must be recognized that the net effect rationale iñherés in a number of decisions. See Bazley v. Commissioner, 331 U.S. 737 [67 S.Ct. 1489, 91 L.Ed. 1782, 173 A.L.R. 905]; Hirsch v. Commissioner [9 Cir.], 124 F.2d 24; Flanagan v. Helvering, [73 App.D.C. 46], 116 F.2d 937; Hyman v. Helvering [63 App.D.C. 221], 71 F.2d 342; cf. Commissioner [of Internal Revenue] v. Bedford’s Estate, 325 U.S. 283 [65 S.Ct. 1157, 89 L.Ed. 1611]. But all that this means is that no one factor is controlling. It surely does not mean that the mere existence of sufficient earnings and profits to cover the acquisition of the stock automatically brings the transaction within the provisions of Section 115(g). If that were so, it would seem that practically no room would be left for the operation of the provisions of Section 115(g) relating to distributions in partial liquidation. Just as the presence" }, { "docid": "23411863", "title": "", "text": "hearings on the 1954 Code suggestions were made that this new section be drawn to apply to stock dividend expenditures. H.R. No. 1337, 83d Cong., 2d Session, p. A64, 3 U.S.Code Congressional and Administrative News (1954) pp. 4017, 4201, flatly states, however, that “Expenses of issuing shares of stock * * * are a reduction of the proceeds derived from the issue, and are properly chargeable against the paid-in capital. Such expenses are not organizational expenditures within the meaning of section 248 * * Although this refers to the situation where there are proceeds derived from a stock issue, it clearly discloses, it seems to us, the attitude of Congress as to the nature of stock issuance expenditures and congressional opposition to their deductibility even under the relief provisions of the new § 248. 6. The fact that these stock dividends, by § 305(a), were not taxable to the shareholder recipients and, by § 312(d) (1) (B), did not for income tax purposes reduce the amount of available earnings to be considered in determining the tax-ability of future distributions to shareholders, in contrast to their capitalization for corporate accounting purposes, is of no significance. This precise situation is not unknown. Sheehan v. Dana, 163 F.2d 316, 318, 173 A.L.R. 684 (8 Cir. 1947); Long v. Commissioner, 155 F.2d 847, 849, 167 A.L.R. 550 (6 Cir. 1946); United States v. Lesoine, 203 F.2d 123, 125 (9 Cir. 1953); see Commissioner v. Estate of Bedford, 325 U.S. 283, 290, 65 S.Ct. 1157, 89 L.Ed. 1611 (1945). Perhaps all this merely brings us back to where we started, namely, that, as the Supreme Court said in Welch v. Helvering, supra, in cases in this area we are necessarily dealing in matters of distinction in degree and not in kind; that there is no readily available formula; and that the standard is “a way of life”. Having in mind that the taxpayer’s task here is to qualify its expenditures not only as non-capital in nature but as ordinary and necessary business expenses under § 162(a); that it is not enough to demonstrate that they" }, { "docid": "5974933", "title": "", "text": "there is a conclusive presumption that every distribution is made out of the earnings or profits, to the extent thereof and from the most recently accumulated earnings or profits. Sections 27(a) and 115(a), (b), of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, pages 837, 868. The Commissioner denied the deduction and his holding was sustained by the Board. Section 27(h) provides that if any distribution (including stock dividends and stock rights) is not a taxable dividend in the hands of the stockholders, no dividends paid credit shall be allowed with respect to such distribution. Section 115(c) sets forth that the part of such a distribution, which is properly chargeable to capital account, shall not be considered a distribution of earnings or profits; and such limitation refers to the treatment of a distribution of earnings or profits in the hands of the dis-tributees. Section 27(f) provides that, in the case of amounts distributed in liquidation, the part of such distribution which is properly chargeable to the earnings or profits shall, for the purpose of computing the dividends paid credit, be treated as a taxable dividend paid. Applying Sections 27 (h) and 115(c), in so far as stock was canceled, the distribution in question, in the hands of the stockholders was properly chargeable to capital account. Amounts distributed in retirement of capital stock, equal to the par value at which the liquidated stock is carried on the corporate books, are considered a return of capital, from the standpoint of both stockholder and corporation; and such distributions are properly chargeable to capital account. Foster v. United States, 17 F.Supp. 191, 84 Ct.Cl. 193; see also, Helvering v. Jarvis, 4 Cir., 123 F.2d 742. The distribution was a return of capital to the stockholders and was not to be considered a distribution of earnings or profits. It was, therefore, not a distribution of earnings in the hands of the stockholders, and they would not be taxable thereon. Since the dividends were not taxable to the stockholders, no dividends paid credit would be allowable under Section 27(h). But it is contended by petitioner" }, { "docid": "17081803", "title": "", "text": "law that the net effect of the transaction, rather than the motives and purposes of the corporation or its stockholders, is the test of taxability. It must be recognized that the net effect rationale iñherés in a number of decisions. See Bazley v. Commissioner, 331 U.S. 737 [67 S.Ct. 1489, 91 L.Ed. 1782, 173 A.L.R. 905]; Hirsch v. Commissioner [9 Cir.], 124 F.2d 24; Flanagan v. Helvering, [73 App.D.C. 46], 116 F.2d 937; Hyman v. Helvering [63 App.D.C. 221], 71 F.2d 342; cf. Commissioner [of Internal Revenue] v. Bedford’s Estate, 325 U.S. 283 [65 S.Ct. 1157, 89 L.Ed. 1611]. But all that this means is that no one factor is controlling. It surely does not mean that the mere existence of sufficient earnings and profits to cover the acquisition of the stock automatically brings the transaction within the provisions of Section 115(g). If that were so, it would seem that practically no room would be left for the operation of the provisions of Section 115(g) relating to distributions in partial liquidation. Just as the presence of a legitimate business purpose will not, standing alone, conclusively determine that Section 115(g) is inapplicable, so the mere fact that the corporation has sufficient surplus available does not conclusively determine that the section is applicable. All relevant factors must be considered in determining the net effect of the transaction.” With this language we agree. As Judge Vinson, now Chief Justice, said in Flanagan v. Helvering, 73 App.D.C. 46, 116 F.2d 937, 939: “The phrases ‘in such manner’ and ‘essentially equivalent’ negative any idea that a weighted formula can resolve the one crucial issue—shall the distribution be treated as a taxable dividend.” And the Treasury Regulations, 111, Sec. 29, 115-9, themselves provide that whether a distribution in connection with a cancellation or redemption of stock is essentially equivalent to the distribution of a taxable dividend depends upon the circumstances of each case. It seems to us that the court below rightfully decided that, in determining whether the distribution made to the taxpayer was essentially of the character of a dividend, all the factors and all" }, { "docid": "3048255", "title": "", "text": "a taxable dividend paid.” We think there is force in the Government’s argument. We wish Congress had been equally specific and clear in its writing of section 26 (h), with which we are here concerned. In Helvering v. Credit Alliance Corp., 316 U.S. 107, 62 S.Ct. 989, 86 L.Ed. 1307, the corporation had distributed accumulated earnings in a liquidation transaction and claimed the statutory credit for dividends paid. The Court said, 316 U.S. at page 110, 62 S.Ct. at page 991: “Although a distribution in liquidation of earnings * * * does not constitute a dividend in the proper sense of the term, subsection (f) categorically declares that a liquidating distribution, to the extent it is composed of such earnings, shall, for the purposes of computing the dividends paid credit ‘be treated as a taxable dividend paid.’ ” In St. Louis Co. v. United States, 3 Cir., 237 F.2d 151, certiorari denied 352 U.S. 1001, 77 S.Ct. 558, 1 L.Ed.2d 546, the corporation taxpayer claimed a dividends-paid credit for payments made in a distribution in liquidation. It had a deficit balance of accumulated earnings, but it had current earnings in the year of distribution. Under the definition of dividends in section 115(a) and the provisions of section 115(b), applied without consideration of section 115(e), its contention would have been right. But the Court held that the statutes made a distinction between distributions made by a going corporation and those made by a corporation in liquidation; that in the latter case the distributions in liquidation would be treated as dividends only if a statute such as section 27(g) specifically so provided, and that the taxpayer’s situation did not comply with section 27(g) because it did not have accumulated earnings, but a deficit. In Shellabarger Grain Products Co. v. Commissioner, 7 Cir., 146 F.2d 177, the court gave similar treatment to a comparable situation. Another instance of a “dividends paid” credit in the statutes is a section of a 1935 Act, 49 Stat. 908, which became section 121 of the Internal Revenue Code of 1939, which gave to banks and domestic insurance" }, { "docid": "5974936", "title": "", "text": "credit. Section 115(h) of the Revenue Act of 1936, provides that a distribution of stock or securities in another corporation, shall not be considered a distribution of earnings if no gain to the distributee from the receipt of such stock or securities was recognized by law, or if the distribution was not subject to tax in his hands, because it did not constitute income within the meaning of the Sixteenth Amendment; and it was held that, on such a distribution, the corporation was not entitled to a dividends paid credit. Reed Drug Co. v. Commissioner, 6 Cir., 130 F.2d 288. Petitioner, however, relies on Helvering v. Credit Alliance Corp., 316 U.S. 107, 62 S.Ct. 989, 86 L.Ed. 1307, in which it was held that a distribution in liquidation of earnings or profits to a parent corporation was entitled to a dividends paid credit, although the distribution was not taxable in the hands of the distributee; and that Section 27(h), denying such credit for any distribution not taxable in the hands of stockholders, was inapplicable. The reason that the distribution in that case was not taxable in the hands of the parent corporation was because, by the provisions of Section 112(b) (6), 26 U.S.C.A. Int.Rev. Acts, page 855, no gain or loss is recognized upon the receipt by a corporation of property distributed in complete liquidation of another corporation. The ratio deci-dendi was that Section 27(f) applied in so far as the distribution was properly chargeable to earnings, and that the provisions of the section clearly commanded that for the purposes of computing the dividends paid credit, such distribution should be treated as a taxable dividend paid— whether, in fact, it was or not. Sustaining the construction, as revealed in the foregoing cases, was the legislative history disclosing the intention to simplify corporate structures, not inconsistent with the intention to tax undistributed corporate profits. Helvering v. Credit Alliance Corp., 4 Cir., 122 F.2d 361, 364. See, also, dissenting opinion of Hutcheson, J., in Centennial Oil Co. v. Thomas, 5 Cir., 109 F.2d 359. “It should not be overlooked that the Revenue" }, { "docid": "13831410", "title": "", "text": "of capital is in reality made out of accumulated earnings and profits. If over the years since February 28, 1913, the corporation piled up earnings and, qua bookkeeping, imprisoned them in the capital account through the issuance of nontaxable stock dividends, a subsequent distribution in money or bonds of an amount not in excess of such accumulated earnings and profits can partake of the quality of a dividend distribution. Section 115(b), “every distribution is made out of earnings or profits to the extent thereof.” Corporate accounting concepts are not controlling. Commissioner v. Estate of Bedford, 1945, 325 U.S. 283, 65 S.Ct. 1157; Commissioner v. Wheeler, 1945, 324 U.S. 542, 65 S. Ct. 799; cf. Helvering v. Gowran, 1937, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224. Once it is concluded that the debentures were distributed out of earnings or profits accumulated since February 28, 1913, taxation must result. To hold otherwise would be to permit, by means of bookkeeping entries, the use of the Section 112 exemption as a device to evade the payment of income tax as required under Section 115. Cf. Commissioner v. Fisher, 66 S.Ct. 686. In the last analysis, this case turns on a dispute over proper accounting procedure for income tax collection purposes. We are not at liberty to treat as a question of law such a dispute. It is patently controlled by the Dobson rule. Affirmed. MARIS and . GOODRICH, Circuit Judges, dissent for the reason set out in their dissenting opinion in the case of Baz-ley v. Commissioner, 3 Cir., 155 F.2d 237. Petitioner held 5,903 out of a total of 5,914 shares outstanding. The authorized capital was 6,000 shares of $100 par value. The following “plan of reorganization” was consummated: (1) A reduction in authorized capital stock from $600,000 represented by 6,000 shares of a par value of $100 each, of which 5,914 shares of $591,400 were issued and outstanding, to $295,700, to be divided into 5,914 shares without nominal or par value. (2) The issuance of debenture bonds in the aggregate principal amount of $295,700, bearing interest at the rate" }, { "docid": "23495424", "title": "", "text": "325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611, the pendulum swung the other way, and it was even suggested that the only test might be the mere existence of earnings and profits. Kirschenbaum v. Commissioner, 2 Cir., 1946, 155 F.2d 23, 170 A.L.R. 1389. As soon perceived, however, the question could not be so simply resolved. For if Section 115(c) prescribing capital gain treatment for redemption of stock in partial liquidation is to have any application, not all stock redemption cases can be disposed of by simple reference to the availability of earnings and profits. Commissioner of Internal Revenue v. Snite, 7 Cir., 1949, 177 F.2d 819. In Flanagan v. Helvering, 1940, 73 App.D.C. 46, 116 F.2d 937, 939, 940, Judge (later Chief Justice) Vinson wrote that it is the “net effect of the distribution rather than the motives and plans of the taxpayer or his corporation,” that is “the fundamental question in administering § 115(g).” Yet it has been said that “the net-effect test is not a test but an attractive abbreviation of the statute * * *. ‘Net effect’ is a paraphrase for ‘essentially equivalent.’ ” Commissioner of Internal Revenue v. Sullivan, 5 Cir., 1954, 210 F.2d 607, 609. So the decided cases in the end only lead back to the door at which we entered, the statute itself, which imposes an ordinary income tax upon a partial liquidation only when made “at such time” and “in such manner” as to make the distribution and cancellation essentially equivalent to the distribution of a dividend. Accepting as we do the Tax Court’s finding that the syndicate members borrowed funds from Buckeye in 1943 to purchase Mrs. Derby’s shares, and that Buckeye forgave the remaining balance of this loan in 1945, the court’s ultimate finding that the 1945 transaction was substantially equivalent to a dividend distribution would seem logically to follow. Lowenthal v. Commissioner, 7 Cir., 1948, 169 F.2d 694; Wall v. United States, 4 Cir., 1947, 164 F.2d 462; J. Natwick, 1937, 36 B.T.A. 866. Compare Fox v. Harrison, 7 Cir., 1944, 145 F.2d 521. It is true" }, { "docid": "4726460", "title": "", "text": "by another together with continuity of the proprietary interest. The parent completely took over the subsidiary. There is complete identity of the corporations. The shareholders of the parent, who in effect owned the subsidiary, now own the parent embodied with the subsidiary. The bald fact remains that one corporation was liquidated and another took over all its assets, earnings and profits. Distributions of stock (by Cole-French) did not have the effect of reducing earnings' or profits available for the payment of dividends. Section 115(h) in the taxable year 1939, so provided in effect. The Cole-French Company book transfer of $225,000 from surplus to capital did not impair or diminish the earnings and profits. It was equivalent to a stock dividend and the stockholders of Cole-French Company realized no gain subject to tax. Michaels v. McLaughlin, supra; J. F. Carlston v. Commissioner of Internal Revenue, 22 B.T.A. 217. In any event, there was no taxable distribution of earnings or profits for the year 1928. A stock dividend which is not taxable does not operate to diminish corporate earnings for the purpose of determining the taxability of subsequent distributions. August Horrmann v. Commissioner of Internal Revenue, 34 B.T.A. 1178; John K. Beretta v. Commissioner of Internal Revenue, 1 T.C. 86, affirmed 5 Cir., 141 F.2d 452; section 115(h) Revenue Act of 1936. The amount of $225,000 remained a part of the earnings and profits of Cole-French Company to the time of liquidation. Upon liquidation, these earnings and profits became the earnings and profits of the parent (Metropolitan) corporation. United States v. Kauffmann, supra; Helen V. Crocker v. Commissioner of Internal Revenue, 29 B.T.A. 773; Murchison’s Estate v. Commissioner, 5 Cir., 76 F.2d 641; Reed Drug Co. v. Commissioner, 6 Cir., 130 F.2d 288; Harter v. Helvering, 2 Cir., 79 F.2d 12. Cf. Estate of McClintic, 47 B.T.A. 188. As indicated no gain or loss was recognized in the transfer to Metropolitan Properties Company in the complete liquidation of the Cplc-French Company by rea’son of the provisions of section 112(b) (6) of the Revenue Act of 1936. The earnings and profits of Cole-French" }, { "docid": "14232313", "title": "", "text": "to verify or rebut the facts in the schedule (of depreciation) cannot be located and are not available to the parties.” The Bell-Sorensen Corporation’s tax returns, stipulated by the parties to reflect accurately the entries on the books of that corporation, show that in 1952 it had a net income of $17,153.70 and in 1953 a net income of $12,236.73, on which it paid income taxes in each such year. It is further stipulated that the taxpayer received distributions of $2,683.73 in 1952 and $2,691.19 in 1953, which are admitted to be taxable to him as dividends. If such dividends repre- .seated a 54% distribution to this taxpayer it is manifest that Bell-Sorensen in •each of the years in question had additional “earnings and profits” from which .additional dividends could have been distributed. The taxpayer in the case at bar Tiad the burden of proving that the distributions in question were not made from current earnings or profits in the .years of distribution and that there were no other accumulated earnings or profits from which such distribution could be .•attributed. All that appellee established is that the Bell-Sorensen Company catalogued the distributions in question to a pro rata share of distribution from a reserve for depreciation of the patent account. In the light of the earnings and “net income” of Bell-Sorensen for the .years 1952 and 1953 and the provisions of Section 214(b) of the Revenue Act of 1939 (26 U.S.C.A. § 115(b), 1952 ed.) we do not consider he has sustained the burden of proof cast upon him. That section of the Code provided in part: “For the purposes of this chapter ■every distribution is made out of •earnings or profit to the extent thereof, and from the most recently accumulated earnings or profits.” Cf. Beretta v. Commissioner, 1 T.C. 86, affirmed 141 F.2d 452 (5 Cir. 1944) cert. den. 323 U.S. 720, 65 S.Ct. 50, 89 L.Ed. 579; Wilson v. Commissioner, 27 T.C. 976, affirmed per curiam 255 F.2d 702 (5 Cir. 1958); United States v. Anderson, 269 U.S. 422, 423, 46 S.Ct. 131, 70 L.Ed. 347 (1926);" }, { "docid": "4726461", "title": "", "text": "corporate earnings for the purpose of determining the taxability of subsequent distributions. August Horrmann v. Commissioner of Internal Revenue, 34 B.T.A. 1178; John K. Beretta v. Commissioner of Internal Revenue, 1 T.C. 86, affirmed 5 Cir., 141 F.2d 452; section 115(h) Revenue Act of 1936. The amount of $225,000 remained a part of the earnings and profits of Cole-French Company to the time of liquidation. Upon liquidation, these earnings and profits became the earnings and profits of the parent (Metropolitan) corporation. United States v. Kauffmann, supra; Helen V. Crocker v. Commissioner of Internal Revenue, 29 B.T.A. 773; Murchison’s Estate v. Commissioner, 5 Cir., 76 F.2d 641; Reed Drug Co. v. Commissioner, 6 Cir., 130 F.2d 288; Harter v. Helvering, 2 Cir., 79 F.2d 12. Cf. Estate of McClintic, 47 B.T.A. 188. As indicated no gain or loss was recognized in the transfer to Metropolitan Properties Company in the complete liquidation of the Cplc-French Company by rea’son of the provisions of section 112(b) (6) of the Revenue Act of 1936. The earnings and profits of Cole-French Company therefore remained the earnings and profits of Metropolitan Properties Company, adequate in 1939 to cover the distributions here in question. Whatever the reason for the amendment of section 115(h) in 1938, which added the words “or of property or money”, the simple words of the statute show that from the taxable year 1938 on, any distribution by a parent corporation out of earnings or profits of its subsidiary liquidated prior to 1938 under section 112(b) (6) is a taxable dividend within the meaning of the Federal statute. The controlling law is that contained in the Internal Revenue Code, and the applicable section which specifically governs the problem is 115(h) as amended by the 1938 Act. The provisions of this section seem to clearly indicate that after a tax-free liquidation under section 112(b) (6) the earnings or profits of the subsidiary retain their character in the hands of the parent and are available for the distribution of taxable dividends. Since the distribution took place in 1939 it was covered by the then effective and existing" }, { "docid": "11034367", "title": "", "text": "absence of the complete cancellation or redemption of a part of the stock by such payment the payment is taxable as income. Wilcox v. Commissioner of Internal Revenue, 9 Cir., 137 F.2d 136. Moreover, the Tax Court held that the entire $135,000 paid to the stockholders was a dividend out of earnings and profits, notwithstanding the recitals in the resolution of the directors that a portion thereof was the reserve for depreciation for that portion of the bridge which was sold to Mexico, and a portion was from the sale, at a loss, of a capital asset. The basis for this holding was that the $250,000 stock dividend, declared in 1922, was out of earnings and profits which had been accumulated since February 28, 1913, and that when the corporation, during the tax year here, reduced its capital stock by $250,000 the amount of its earnings which were capitalized in 1922 should have been included in the computation to the extent that they represent earnings or profits since February 28, 1913. In this manner the distribution would not result in impairment of capital, nor in the distribution of capital assets and reserves for depreciation. Where a corporation has available sufficient earnings and profits any distribution to stockholders will, for tax purposes, be deemed to have been made from its earnings and profits instead of from capital assets or reserves for depreciation. Sec. 115 (b), Rev. Act 1936, 26 U.S.C.A. Int.Rev.Acts, page 868. A corporation may not completely avoid tax consequences to its stockholders by declaring a stock dividend out of profits in one year, later reducing its capital stock by the amount of such stock dividend, and then distributing, as capital assets, these profits under the guise of a partial liquidation. Walker v. Hopkins, Collector, 5 Cir., 12 F.2d 262; Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570. The Tax Court was right in both features of this case, viz., (a) the distribution was not one in partial liquidation; (b) the distribution will be deemed to have been made from the profits represented" }, { "docid": "13827590", "title": "", "text": "1570, a stock dividend (common on common) is accordingly not a distribution of earnings. Chapman Price Steel Company v. Commissioner, 7 Cir., 146 F.2d 189, certiorari denied, 325 U.S. 876, 65 S.Ct. 1557, 89 L.Ed. 1993. Such earnings are available for future distribution as dividends. Walker v. Hopkins, Collector, 5 Cir., 12 F.2d 262, certiorari denied 271 U.S. 687, 46 S.Ct. 638, 70 L.Ed. 1152; Wilcox v. Commissioner, 9 Cir., 137 F.2d 136; Beretta v. Commissioner, 5 Cir., 141 F.2d 452. See Commissioner v. Estate of Bedford, 325 U.S. 283, 65 S.Ct. 1157, 89 L.Ed. 1611. The rulings of the Second Circuit in Commissioner v. Quackenbos, 78 F.2d 156, Patty v. Helvering, 98 F.2d 717, and Bedford’s Estate v. Commissioner, 144 F.2d 272, indicating a contrary view have been recently overruled by the decision in Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23, and by the reversal of Bedford’s Estate v. Commissioner by the Supreme Court in Commissioner v. Estate of Bedford, supra. Petitioner contends that a proper construction of § 115(h) of the Internal Revenue Code makes the distribution a nontaxable return of capital to him, even though it would not be such to an original recipient of the stock dividend. He is a purchaser of the stock from an original recipient of the stock dividend. He points out that the statute specifically refers to a distributee, which logically means that it is not applicable to a purchaser from a distributee, and that a ruling making it applicable to such a purchaser, particularly one without notice of the prior stock dividend, in effect imposes on the stock in the hands of such a purchaser an undisclosed lien by taxing the distribution as a dividend instead of treating it as a return of invested capital. The resulting hardship and unfairness is pointed out in Commissioner v. Cordingley, 1 Cir., 78 F.2d 118 and Parker v. United States, 7 Cir., 88 F.2d 907, upon which cases petitioner strongly relies. However, the legislative history of § 115(h) shows that it was not intended to make any change in the existing rule but" } ]

[ { "docid": "12957499", "title": "", "text": "States v. Keller, 730 F.Supp. 151, 156 (N.D.Ill.1990); United States v. Kimball, 711 F.Supp. 1031, 1032-34 (D.Nev.1989); United States v. Scanio, 705 F.Supp. 768, 778-79 (W.D.N.Y.1988). VI. Anthony Jacobs’ Sentence. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, challenges the sentence imposed on him by the district court. He contends that his sentence, which exceeds twenty-seven years’ imprisonment, resulted from misapplication of the Sentencing Guidelines. We agree and, accordingly, remand to Chief Judge Platt for resentencing. The district court’s computation of Jacobs’ offense level followed a two-step analysis in which, (1) the court approximated that the Mickens conspiracy distributed in excess of fifty kilograms of cocaine, based on Mickens’ unexplained income of over $2,000,000 during the operation of the conspiracy; and,- (2) the court attributed the full approximated amount distributed by the conspiracy to Anthony Jacobs. This quantity was added to the 24.4 grams of cocaine that Jacobs admitted to selling, and resulted in an offense level of 36. Match ing Jacobs’ Criminal History Category I with this offense level resulted in a sentence range of 262 to 327 months. The court sentenced Jacobs to the high end of that range. The district court’s initial step in calculating Jacobs’ sentence was proper, as the commentary to the Guidelines reveals: Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records.... U.S.S.G. § 2D1.4, application note 2. In theory, the court’s second step was also proper. Pursuant to Guidelines § 1B1.3, one convicted of a narcotics conspiracy may be sentenced on the basis of “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” U.S.S.G. § 1B1.3, application note 1; see United States v. Schaper, 903 F.2d 891, 897-99 (2d Cir.1990); United States v. Candito, 892 F.2d 182, 185 (2d Cir.1989). However," } ]

[ { "docid": "9803457", "title": "", "text": "the guideline range, Scanga’s counsel requested that the district court sentence Scanga in the low end of the range because, “with respect to relevant conduct, he was using a large percentage of [the cocaine].” Furthermore, defense counsel stated that the amount of cocaine Scanga used was “still accountable for relevant conduct, but in terms of being distributed ... Mr. Scanga was addicted and was using a considerable amount.” The district court ultimately adopted the guideline calculation of relevant conduct found in the PSR (more than 2.0 kilograms but less than 3.5 kilograms of cocaine). The court, after inclusion of a two-level upward adjustment for obstruc tion of justice and a three-level reduction for acceptance of responsibility, found Scanga’s total offense level to be 27 with a criminal history level of two. This placed Scanga in a guideline range of 78 to 97 months. The court concluded that a sentence near the top of the guideline range was appropriate, and so sentenced Scanga to a 92-month term of imprisonment, five years of supervised release, and a $100 special assessment. Moreover, Scanga was to forfeit 65% of the sale proceeds of his home, with the remaining 35% of the amount from the sale to go towards child support for his son. In this appeal of his sentence, Scanga first contends that the district court committed plain error by not taking into account what Scanga characterizes as his statement that he consumed approximately half of the cocaine that was shipped to him. According to Scanga, the court instead decreased the drug quantity by the amount he and Busse used during a five-week period. He argues that if the court had decreased the drug quantity by the entire “personal use” amount, the total quantity would have been more than .5 kilograms but less than 2.0 kilograms, resulting in a guideline range of 63 to 78 months. We believe, however, that Scanga has waived appellate review of the calculation of his relevant conduct. Waiver, as opposed to forfeiture, “occurs when a defendant intentionally relinquishes a known right.” United States v. Staples, 202 F.3d 992, 995" }, { "docid": "12957482", "title": "", "text": "of Mickens’ lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,-000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens’ former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties’ actual purchase prices. Additional evidence of Mickens’ automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a “protective sweep” of the premises in connection with Mickens’ arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian’s protective sweep was not justified by the circumstances of the arrest. This motion was denied. Many of Mickens’ automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens’ girlfriend, acted on Mickens’ behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens’ nominee in purchasing the California condominium, as well as a $133,350 yacht. Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern" }, { "docid": "2441793", "title": "", "text": "PER CURIAM: This is an appeal from a judgment of conviction entered on a plea of guilty in the United States District Court for the Eastern District of New York, Platt, C.J. Defendant-appellant Jacobs conspired to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, possessed with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and conspired to obstruct the lawful function of the Internal Revenue Service in violation of 18 U.S.C. § 371. On remand for resentencing, the district court sentenced defendant-appellant to 235 months imprisonment and five years supervised release and ordered him to pay a special assessment of $200. Jacobs argues that this sentence is impermissibly harsh and results from the district court’s failure to follow our earlier decision in this case. We agree. We vacate the sentence imposed by the district court and remand for resentencing consistent with this opinion. BACKGROUND Between 1984 and 1988, Thomas Mickens directed a lucrative cocaine distribution network headquartered in Queens, New York. At Mickens’ trial, law enforcement officers testified about numerous undercover purchases from Mickens’ underlings, including Anthony Jacobs, a reputed “lieutenant” in Mickens’ organization. Jacobs, during the course of two sales, personally sold undercover officer Austin Fields slightly less than one ounce of cocaine. In addition to direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. This included the purchase of over $500,000 worth of automobiles and $700,000 worth of property- The district court initially sentenced Jacobs to 327 months imprisonment, a five year term of supervised release and a special assessment of $200. In his initial ap peal to us, Jacobs argued that, in calculating his United States Sentencing Guidelines (Guidelines) level, the district court had improperly attributed to him the entire quantity of narcotics for which Mickens was held responsible. In our review of Jacobs’ sentence, we approved of the district court’s two-step method of computing Jacobs’ offense level. See United States v. Mickens, 926 F.2d 1323, 1331-32 (2d Cir.1991) (Mickens I). The district court first had approximated the amount of cocaine distributed by the conspiracy" }, { "docid": "22102986", "title": "", "text": "only a few ounces at a time. Based upon the evidence presented at trial, Appellants were convicted of conspiracy to possess with the intent to distribute and to distribute cocaine and cocaine base, see 21 U.S.C.A. § 846 (West 1999); Phifer was additionally convicted of two counts of money laundering, see 18 U.S.C.A. § 1956(a)(l)(B)(i) (West 2000). The drug trafficking count of the indictment did not allege a specific quantity of narcotics, and the jury was not instructed to make a finding regarding the quantity of drugs involved in the Conspiracy- Appellants were sentenced as follows. In calculating Angle’s sentencing range pursuant to the U.S. Sentencing Guidelines Manual (1995), the district court did not make specific findings regarding the amount of narcotics attributable to Angle. Rather, the court simply stated that “[o]n examination of the evidence and the preponderance thereof, the Court finds the amount of drugs attributable to [Angle] in this matter would give him a [base offense] Level 34.” J.A. 456; see U.S.S.G. § 2Dl.l(e)(3). Additional calculations resulted in a guideline range of 210-262 months imprisonment. The district court imposed a sentence of 210 months. The district court determined that Phi-fer was responsible for at least 29 kilograms of cocaine and 3 kilograms of cocaine base, resulting in a base offense level of 38 for the drug trafficking conviction. See U.S.S.G. § 2Dl.l(c)(l). Further guideline calculations resulted in a guideline range of 292-365 months imprisonment. The district court imposed a sentence of 292 months on the drug trafficking conviction and concurrent sentences of 240 months on each of the money laundering convictions. Angle and Phifer subsequently appealed, raising numerous challenges to their convictions and sentences. While the appeal was pending, the Supreme Court issued its decision in Apprendi. Based on Apprendi, Appellants argued for the first time on appeal that the district court erred in failing to treat as an element the specific quantity of narcotics involved in the of fense. A panel of this court agreed, holding that because a specific quantity of narcotics was not charged in the indictment, Appellants were subject to a maximum penalty" }, { "docid": "12957483", "title": "", "text": "by the circumstances of the arrest. This motion was denied. Many of Mickens’ automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens’ girlfriend, acted on Mickens’ behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens’ nominee in purchasing the California condominium, as well as a $133,350 yacht. Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern of illegal activity. Kearney was sentenced to concurrent five-year terms of imprisonment on each count, to be followed by two years’ supervised release, a fine of $200,000, and a $100 special assessment. Celifie was sentenced, pursuant to a downward departure, to concurrent eighteen-month terms of imprisonment on each count, to be followed by two years’ supervised release, and a $150 special assessment. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, was sentenced to 327 months’ imprisonment, to be followed by a five-year term of supervised release, and a special assessment of $200. This appeal and cross-appeal followed. DISCUSSION I. The Unfair Trial Claim. Defendants-appellants Mickens, Kearney and Celifie claim that the district court’s admonitions to counsel and questions of witnesses deprived them of a fair trial. Defendants-appellants claim that the court “poisoned the courtroom atmosphere and prevented a fair trial.” We disagree. While many of the court’s remarks were unfortunate, their cumulative effect was not a deprivation of the right to a fair" }, { "docid": "14857804", "title": "", "text": "have foreseen. Accordingly, in this case, Perrone could have been found guilty of participating in a conspiracy the ultimate object of which was to manufacture more than five kilograms of cocaine without necessarily knowing that manufacturing more than five kilograms was the object. However, under the guidelines, he can only be held responsible for what he knew or could reasonably have foreseen. See e.g., United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.1991) (although defendant could be found guilty of conspiracy based on the entire amount of cocaine distributed, entire quantity of cocaine could not be used to establish base offense level without proof that he could reasonably have foreseen distribution of future amounts or reasonably should have known what past quantities were distributed); United States v. Mickens, 926 F.2d 1328, 1331-32 (2d Cir.1991) (attribution to defendant of full approximated amount of cocaine distributed by conspiracy was improper absent showing of foreseeability). Neither the jury in rendering its verdict nor Judge Stanton in imposing sentence made a specific finding as to whether Per-rone could reasonably have foreseen that the object of the conspiracy was to manufacture more than five kilograms of cocaine. The determination of the appropriate offense level under the guidelines was based solely on the testimony of a chemist that the amount of chemicals seized might be used to process eight to ten kilograms of cocaine. At the sentencing proceeding, Judge Stanton stated: “[T]he expert testified that close to ten kilos of cocaine could be manufactured with the amount of ethyl ether and acetone which the defendant was very closely connected with.” However, he failed to make the necessary findings with regard to what Perrone actually knew or understood or reasonably could have foreseen with regard to the amount of drugs which those chemicals could have been used to process. United States v. Jacobo, 934 F.2d 411, 416 (2d Cir.1991). What might be considered hairsplitting in another context is simply due process where the consequences of factual determinations at sentencing are as substantial as they are under the present guidelines. For example, if it were found that" }, { "docid": "2441797", "title": "", "text": "again attributes to Jacobs the entire quantity of narcotics that the Mickens conspiracy is approximated to have peddled, that this appeal lies. DISCUSSION The lower court must adhere to the decision of a higher court even where it disagrees or finds error in it. See In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895) (“That court cannot vary ... or examine [the higher court’s decision] ... even for apparent error.”) (citations omitted); Soto-Lopez v. New York City Civil Service Comm’n, 840 F.2d 162, 167 (2d Cir.1988) (The law-of-the-case “doctrine imposes a duty on a lower court to follow a ruling made by the reviewing court at an earlier stage of a case, and ... the lower court has no discretion to disregard that duty.”) (citations omitted). Our opinion in Mickens I clearly stated our belief that “attribution [to Jacobs] of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper.” 926 F.2d at 1332. At resentencing, the district court did not consider new evidence but instead set forth those factors that it believed supported Jacobs’ original sentence. All of those factors were before the panel of this Court that first heard this case and we will not now reconsider them. To clear up any confusion that still remains, we reiterate that on the record as it stood in Mickens I and as it stands today, Jacobs should not have been held accountable for the sale of cocaine other than that which he personally sold — namely less than one ounce. On the remand we order today, if reliable new evidence is presented to establish what portion of Mickens’ unreported income came from the narcotics conspiracy of which Jacobs was a member, Jacobs may be sentenced on the basis of the quantity extrapolated from that income, as long as that quantity was reasonably known by or foreseeable to him. See, e.g., United States v. Miranda-Ortiz, 926 F.2d 172, 177-78 (2d Cir.), cert. denied, — U.S. —, 112 S.Ct. 347, 116 L.Ed.2d 287 (1991); United States v. Candito, 892" }, { "docid": "2441795", "title": "", "text": "and then attributed the full amount distributed by the conspiracy to Jacobs. Based on the amount of money that Mickens had spent during the duration of the conspiracy, the district court approximated that Mickens’ organization had dealt over fifty kilograms of cocaine. It then concluded that Jacobs’ Guidelines range should be premised on this quantity. After reviewing the appropriate Guidelines provisions, we concluded that both steps of the district court’s application of the Guidelines were procedurally proper. Id. at 1332 (“ ‘Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance.’ ”) (citation omitted). We stressed, however, that this two-step process could not be applied in any given case absent evidence of a logical relationship among the defendant, the money and the narcotics. Id. In Mickens I, we expressed our belief that the Guidelines had been misapplied in Jacobs’ case. To be precise, we concluded — after reviewing the record — that insufficient evidence existed to connect Jacobs to the quantity of narcotics that the court had extrapolated from Mickens’ unreported income. Id. As a result, we held that Jacobs’ sentence could not be based on the fifty kilogram approximation on which the district court had relied. Id. We also held that it was improper for the district court to have ascribed “managerial” status to Jacobs without a hearing. Accordingly, we remanded to the district court for resentencing. Id. at 1333. On remand, the district court correctly interpreted our opinion as approving of its procedure for applying the Guidelines in narcotics conspiracy cases. Instead of applying our decision that Jacobs could not be held responsible for the sale of fifty kilograms of cocaine, however, the district court explained the rationale and facts on which Jacobs’ initial sentence was based. Consequently, after deducting the portion of Jacobs’ sentence reflecting the upward adjustment for “managerial status,” the district court sentenced Jacobs to 235 months imprisonment and five years supervised release and ordered him to pay a special assessment of $200. It is from this sentence, which" }, { "docid": "2441796", "title": "", "text": "the quantity of narcotics that the court had extrapolated from Mickens’ unreported income. Id. As a result, we held that Jacobs’ sentence could not be based on the fifty kilogram approximation on which the district court had relied. Id. We also held that it was improper for the district court to have ascribed “managerial” status to Jacobs without a hearing. Accordingly, we remanded to the district court for resentencing. Id. at 1333. On remand, the district court correctly interpreted our opinion as approving of its procedure for applying the Guidelines in narcotics conspiracy cases. Instead of applying our decision that Jacobs could not be held responsible for the sale of fifty kilograms of cocaine, however, the district court explained the rationale and facts on which Jacobs’ initial sentence was based. Consequently, after deducting the portion of Jacobs’ sentence reflecting the upward adjustment for “managerial status,” the district court sentenced Jacobs to 235 months imprisonment and five years supervised release and ordered him to pay a special assessment of $200. It is from this sentence, which again attributes to Jacobs the entire quantity of narcotics that the Mickens conspiracy is approximated to have peddled, that this appeal lies. DISCUSSION The lower court must adhere to the decision of a higher court even where it disagrees or finds error in it. See In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895) (“That court cannot vary ... or examine [the higher court’s decision] ... even for apparent error.”) (citations omitted); Soto-Lopez v. New York City Civil Service Comm’n, 840 F.2d 162, 167 (2d Cir.1988) (The law-of-the-case “doctrine imposes a duty on a lower court to follow a ruling made by the reviewing court at an earlier stage of a case, and ... the lower court has no discretion to disregard that duty.”) (citations omitted). Our opinion in Mickens I clearly stated our belief that “attribution [to Jacobs] of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper.” 926 F.2d at 1332. At resentencing, the district court did not consider" }, { "docid": "23602449", "title": "", "text": "broad drug distribution scheme or a marijuana distribution scheme. Sentencing Tr. at 46, Relying on the “broad scope of the relevant conduct analysis, as indicated [by] the [guideline’s] background notes,” the district court found there was “a course of conduct and common scheme to possess and distribute drugs,” and thus included cocaine in the base offense level determination. Sentencing Tr. at 55. Regarding the quantity of cocaine to be included, the district court noted that the probation officer, in the Presentence Investigative Report (PSI), used a starting figure of sixteen ounces of cocaine, based on Lawrence’s possession of one pound over the period from 1980 to 1988, divided it over an eight-year period, and then included the portion that fell within the four-year period of the conspiracy. Sentencing Tr. at 53-54. The district court relied on § 2D1.4 Application Note 2 to approximate the quantity of cocaine and attributed eight ounces to Lawrence. Id. at 55. This quantity of cocaine, added to the sixty-five pounds of marijuana the district court had determined was appropriate, resulted in a heroin equivalency of 74.39 grams and a Level 22 baseline offense. Lawrence received a two-level increase for obstruction of justice for lying to the FBI agent, which resulted in a final base offense level of 24. The district court then combined the Level 24 offense with Lawrence’s criminal history category of II and sentenced him to concurrent sixty-month terms of imprisonment, four years of supervised release on the conspiracy charge, three years of supervised release on the obstruction of justice charge, and a $100 special assessment. II. A. Standard of Review The standard of review for appeals of sentences imposed under the Federal Sentencing Guidelines is set out in 18 U.S.C. § 3742(e)(4) (1988): 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. We have previously stated that" }, { "docid": "12957480", "title": "", "text": "count of money laundering, in violation of 18 U.S.C. § 1956(a)(l)(B)(i). Celifie was also convicted of one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(3). Anthony Jacobs pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; and, two counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). On appeal, defendants-appellants Mick-ens, Kearney, and Celifie contend that comments made by the district court during trial deprived them of their constitutional right to a fair trial. They also challenge the court’s denial of a motion to suppress certain evidence, its rulings on various evi-dentiary questions posed during the course of the trial, and its instructions to the jury regarding the elements of a section 1956 violation. Moreover, they question the constitutionality of the currency reporting requirements of 31 U.S.C. § 5313 (1988). Defendant-appellant Jacobs appeals from his sentence of imprisonment. He contends that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court’s decision to downwardly depart in sentencing defendant-appellant Celifie. For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded. BACKGROUND Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens’ underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed “lieutenant” in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mick-ens’ associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car. In addition to the direct evidence of narcotics activity, the prosecution presented evidence" }, { "docid": "14682061", "title": "", "text": "defendant just over the “line” into a higher offense level. Lasan-ta. It will accept figures that, in their apparent precision, mask the inexactitude of human interactions. Lasanta (analysis of phone conversations translates into finding that 14.7205 kilograms of cocaine was sold). It will permit estimates based on judges’ inferences about other people’s inferences about what third parties are doing. Rivera. It will base sentences on quantity estimates proffered by witnesses whose statements are inconsistent, Burnett, or equivocal. Santiago. Finally, it will accept, without discounting, estimates of drug quantity based on statements of witnesses whose credibility is doubtful. Burnett. Referring to the six cases, the court of appeals stated that “[c]ase law uniformly requires” such “specific evidence” for quantity determinations. Shonubi II, 998 F.2d at 89. The practice, however, is less “uniform” than the court believes. In United States v. Mickens, 926 F.2d 1323 (2d Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 940, 117 L.Ed.2d 111 (1992), the sentencing court “approximated that [a] conspiracy distributed in excess of fifty kilograms of cocaine,” a finding it “based on [the defendant’s] unexplained income of over $2,000,000 during the operation of the conspiracy.” Id. at 1331. The court of appeals held that this estimate — based upon inferences from financial records — was “proper.” Id. at 1332; see also United States v. Jacobs, 955 F.2d 7, 9 (2d Cir.1992) (endorsing estimation procedure used in Miekens); cf. United States v. Perrone, 936 F.2d 1403, 1419 (2d Cir.), clarified, 949 F.2d 36 (2d Cir.1991) (disapproving estimation because “[t]here is no evidence here of any conversations about the amount of drugs, ... no records of past sales, no money”) (emphasis added). In drug manufacturing cases, the court has permitted estimation based on seized chemical bottles whose contents were discarded before testing. See, e.g., United States v. Macklin, 927 F.2d 1272 (2d Cir.), cert. denied, 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). In Macklin, the court found an estimate based primarily on the bottles’ labels to be “thoroughly reasonable,” id. at 1282, despite significant testimony that the government’s expert had overstated the laboratory’s capability." }, { "docid": "12958407", "title": "", "text": "he was unable to obtain the cocaine from his regular supplier. Further, Ortiz quizzed Martinez as to the identity of the purchaser for whom the one kilogram was sought, asking whether Martinez knew the buyer and knew him to be reliable. Martinez’s response was that he had known Zlotkiewicz for four years and had always been paid. In seeking information and receiving these assurances, Ortiz gained knowledge of Martinez’s past operations and was able to capitalize on their success, in the form of assurance (albeit mistaken), as to the safety of the impending sale. We conclude that the evidence in the present case was ample to permit the jury to infer beyond a reasonable doubt that Ortiz knew of the ongoing conspiracy and joined it. B. Sentencing In sentencing Ortiz, the district court concluded that Ortiz’s offense level under the United States Sentencing Guidelines (“Guidelines”) should be calculated on the basis of the conspiracy’s distribution of five or more kilograms of cocaine during the period 1985 through 1988, to wit, the one kilogram distributed by Ortiz on November 29, 1988, plus at least four kilograms distributed by Martinez to Zlotkiewicz prior to that date. Ortiz contends that even if the evidence was sufficient to convict him of the 1985-1988 conspiracy, the amount of narcotics attributable to him for purposes of calculating his base offense level could not properly include the four-to-five kilograms of cocaine distributed by the conspiracy prior to his joining it. For the reasons below, we agree that the record did not support attribution of that total to Ortiz. The pertinent Guidelines provisions are §§ 2D1.1, 2D1.4, which govern narcotics offenses; 3D1.2(d), which directs the grouping of closely related offenses; and 1B1.3, which gives guidance as to “Relevant Conduct.” The base offense level for a narcotics offense is calculated with reference to the quantity of narcotics involved, in accordance with the Drug Quantity Table (“Table”) set forth in Guidelines § 2D1.1(c). The Table sets, inter alia, a base offense level of 32 for an offense involving at least five, but less than 15, kilograms of cocaine; a base" }, { "docid": "12957481", "title": "", "text": "that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court’s decision to downwardly depart in sentencing defendant-appellant Celifie. For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded. BACKGROUND Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens’ underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed “lieutenant” in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mick-ens’ associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car. In addition to the direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,-000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens’ former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties’ actual purchase prices. Additional evidence of Mickens’ automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a “protective sweep” of the premises in connection with Mickens’ arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian’s protective sweep was not justified" }, { "docid": "12957498", "title": "", "text": "reporting by defendants-appellants, we would find no fifth amendment violation. Reporting requirements have been considered vio-lative of the fifth amendment if they “would almost necessarily provide the basis for criminal proceedings against [the reporting individual] for the very activity that he was required to disclose.” United States v. Dichne, 612 F.2d 632, 640 (2d Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1314, 63 L.Ed.2d 760 (1980); see Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 55-57, 88 S.Ct. 697, 706-07, 19 L.Ed.2d 889 (1968). By contrast, section 5313(a) is a legitimate reporting requirement which targets transactions without regard to the purposes for which they are undertaken. See Dichne, 612 F.2d at 639-41. Section 5313(a) does not require the reporting of information that would necessarily be criminal. Like the foreign CTR requirements considered in Dichne, section 5313(a)’s reporting requirements do not violate the fifth amendment privilege against self-incrimination. See United States v. Kaatz, 705 F.2d 1237, 1242 (10th Cir.1983); United States v. Keller, 730 F.Supp. 151, 156 (N.D.Ill.1990); United States v. Kimball, 711 F.Supp. 1031, 1032-34 (D.Nev.1989); United States v. Scanio, 705 F.Supp. 768, 778-79 (W.D.N.Y.1988). VI. Anthony Jacobs’ Sentence. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, challenges the sentence imposed on him by the district court. He contends that his sentence, which exceeds twenty-seven years’ imprisonment, resulted from misapplication of the Sentencing Guidelines. We agree and, accordingly, remand to Chief Judge Platt for resentencing. The district court’s computation of Jacobs’ offense level followed a two-step analysis in which, (1) the court approximated that the Mickens conspiracy distributed in excess of fifty kilograms of cocaine, based on Mickens’ unexplained income of over $2,000,000 during the operation of the conspiracy; and,- (2) the court attributed the full approximated amount distributed by the conspiracy to Anthony Jacobs. This quantity was added to the 24.4 grams of cocaine that Jacobs admitted to selling, and resulted in an offense level of 36. Match ing Jacobs’ Criminal" }, { "docid": "7781645", "title": "", "text": "narcotics conspiracy dating back at least several months before the ring’s criminal activities came to the attention of the police in May 1989. At that time there was a sizeable group of operatives (more than five) involved in the distribution of cocaine, and two different South Bronx apartments — one at Washington Avenue and the other at Bathgate Avenue — were utilized in the distribution scheme. In addition, wholesale quantity suppliers were already in place and servicing the Jones group, which was, according to what Curtis Frederick told agent Ortiz, operating 24 hours, seven days a week. Perhaps most significant, the Guideline commentary suggests that when there is no drug seizure that can serve as the basis for fixing the quantity for sentencing purposes, or the amount seized does not accurately reflect the scale of the offense, as is the case here, the sentencing court “shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.4, commentary (n. 2); § 2D1.1, commentary (n. 11). We must conclude therefore that when performing its calculation, the district court could reasonably draw an inference of a longstanding drug distribution ring, one that had been in operation for a number of months, not just for a few weeks. Consequently, its estimate of the amount of cocaine the conspiracy distributed between January and August 1989 — a period of over 30 weeks, resulting in a finding that the Jones narcotics conspiracy handled at least 15 kilograms of cocaine — is not clearly erroneous. B. Schmidt’s Sentencing In the calculation of Schmidt’s sentence the same findings with respect to the 1989 commencement of the conspiracy and the 15 kilograms distributed were made. In accordance with Sentencing Guideline § 2D1.1(a)(3), his base offense level was 34 with a sentencing range of from 151 to 188 months (about 12& to 15]k years). The district court then departed from the Sentencing Guidelines pursuant to § 5K2.2 (1987), which states that a substantial upward departure may be appropriate “[w]hen the victim suffers a major, permanent disability and when such injury was intentionally inflicted.” U.S.S.G. § 5K2.2, p.s. In determining the" }, { "docid": "3394143", "title": "", "text": "of cocaine took place while he was on probation. This resulted in a guideline range of 110 to 137 months. The court imposed a 120 months term (10 years) of incarceration to be followed by 6 years of supervised release. We reject Townsend’s contention that he was found improperly to have served in a leadership role. We do find merit, however, in his contention that the court improperly considered a prior 1980 burglary conviction which had been sealed pursuant to a Vermont state juvenile law. We vacate Townsend’s sentence and remand his case to the district court for the limited purpose of resentencing him in accordance with this opinion. II. We turn first to Beaulieau’s contention that the district court erred in attributing to him the distribution of 500 to 2000 grams of cocaine. This translates to roughly 17V2 to 7OV2 ounces. Beaulieau contends that his offense level under the guidelines should contemplate only the quantities of cocaine actually sold to Mar-coux, that is, 5V2 ounces (from sales on February 22 (1 ounce), on February 28 (V2 ounce), and on March 5 (4 ounces)). We disagree. With respect to narcotics offenses, the guidelines establish varying offense levels depending on the quantity of drugs involved. U.S.S.G. § 2D1.1. When the amount of drugs seized does not reflect the scale of the offense, the sentencing judge is required to approximate the quantity of the controlled substance. U.S.S.G. § 2D1.4, comment (n. 2). For sentencing purposes, “quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1.3, comment (backg’d); United States v. Vazzano, 906 F.2d 879, 882 (2 Cir.1990); United States v. Schaper, 908 F.2d 891, 893, 897-98 (2 Cir.1990); United States v. Copeland, 902 F.2d 1046, 1048 (2 Cir.1990). For Beaulieau, that scheme or plan included distributing cocaine both alone and in conjunction with Townsend. In calculating the base offense level, the court’s decision to include" }, { "docid": "12957501", "title": "", "text": "as applied to Jacobs, attribution of the full approximated amount of cocaine distributed by the Mickens conspiracy was improper. See United States v. Cardenas, 917 F.2d 683, 687 (2d Cir.1990). As Jacobs contends, such attribution unfairly [holds him] accountable for the narcotics equivalent of four years’ worth of unreported income of another, whose funds may have been accumulated at any prior time, and may have come from any source—including Mickens’ independent, personal transactions in the early 1980’s ..., or some other narcotics conspiracy in which Mr. Jacobs played no part, or even from some altogether different activity such as gambling. Absent reliable evidence connecting Jacobs to the quantity of narcotics extrapolated from Mickens’ unreported income, Jacobs’ 327-month sentence is unsupportable. Moreover, ascribing “managerial” status to Jacobs without conducting a hearing— something which the probation department and prosecution originally agreed was necessary—was erroneous. See United States v. Lanese, 890 F.2d 1284, 1293 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990). VII. Bettina Jacobs Celifie’s Sentence. In sentencing defendant-appellant, cross-appellee Bettina Jacobs Celifie to a term of imprisonment of eighteen months, the district court downwardly departed twenty-three months from the applicable sentencing range. The government cross-appeals from that sentence, contending that the departure was improperly based on Celi-fie’s acceptance of responsibility and on the request for leniency made by the jury in announcing its guilty verdict. We agree and remand to Chief Judge Platt for resen-tencing. A sentencing court may downwardly depart if it finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b) (1988). Whether a particular factor is a permissible ground for departure is a legal issue, which we review de novo. United States v. Joyner, 924 F.2d 454, 459 (2d Cir.1991); United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990). “Departure authority, though not designed to prevent a sentencing judge from exercising ‘discretion, flexibility or independent judgment,’ is nonetheless a device for implementing the guideline system, not a means of casting it" }, { "docid": "2441794", "title": "", "text": "testified about numerous undercover purchases from Mickens’ underlings, including Anthony Jacobs, a reputed “lieutenant” in Mickens’ organization. Jacobs, during the course of two sales, personally sold undercover officer Austin Fields slightly less than one ounce of cocaine. In addition to direct evidence of narcotics activity, the prosecution presented evidence of Mickens’ lavish spending. This included the purchase of over $500,000 worth of automobiles and $700,000 worth of property- The district court initially sentenced Jacobs to 327 months imprisonment, a five year term of supervised release and a special assessment of $200. In his initial ap peal to us, Jacobs argued that, in calculating his United States Sentencing Guidelines (Guidelines) level, the district court had improperly attributed to him the entire quantity of narcotics for which Mickens was held responsible. In our review of Jacobs’ sentence, we approved of the district court’s two-step method of computing Jacobs’ offense level. See United States v. Mickens, 926 F.2d 1323, 1331-32 (2d Cir.1991) (Mickens I). The district court first had approximated the amount of cocaine distributed by the conspiracy and then attributed the full amount distributed by the conspiracy to Jacobs. Based on the amount of money that Mickens had spent during the duration of the conspiracy, the district court approximated that Mickens’ organization had dealt over fifty kilograms of cocaine. It then concluded that Jacobs’ Guidelines range should be premised on this quantity. After reviewing the appropriate Guidelines provisions, we concluded that both steps of the district court’s application of the Guidelines were procedurally proper. Id. at 1332 (“ ‘Where ... the amount [of drugs] seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance.’ ”) (citation omitted). We stressed, however, that this two-step process could not be applied in any given case absent evidence of a logical relationship among the defendant, the money and the narcotics. Id. In Mickens I, we expressed our belief that the Guidelines had been misapplied in Jacobs’ case. To be precise, we concluded — after reviewing the record — that insufficient evidence existed to connect Jacobs to" }, { "docid": "22964409", "title": "", "text": "other defendants. Based on this testimony, the district court adopted the guidelines range recommended in the PSR. Johnson was sentenced to 168 months of imprisonment and five years of supervised release. Moss, on the other hand, proceeded to trial on both the conspiracy charge and the communication-facility charge. At trial, Marvin Reese, one of Moss’s codefendants, testified that Reese sold “cocaine” to Moss in amounts of nine or eighteen ounces once or twice a week from 1995 until December 1997. Moss was found guilty and convicted on both counts. A PSR as to Moss was submitted in October 1998. Based on the 1997 edition of the United States Sentencing Commission Guidelines Manual, the PSR recommended a base offense level of 34 under U.S.S.G. § 2Dl.l(c)(3), based on the government’s assertion that Moss was responsible for greater than fifteen kilograms of cocaine. Moss did not object to the estimation of the drug quantity or the calculation of the base offense level. At sentencing, the district court adopted the base offense level as calculated in the PSR, resulting in a total offense level of 34 and a criminal history category of III, for a guidelines range of 168 to 210 months. The district court sentenced Moss to 168 months of imprisonment on Count 1 and 48 months on Count 15, to be served concurrently, and five years of supervised release. Both defendants then filed direct appeals to this court. Johnson appealed his sentence, arguing, among other things, that “the court improperly determined the amount of drugs attributable to him.” United States v. Johnson, 24 F. App’x 309, 310 (6th Cir.2001) (unpublished order). This court “conclude[d] that the district court properly determined the amount of drugs attributable to Johnson,” because “[a] review of the sentencing transcript clearly establishes that two witnesses (co-defendant Heard and Agent McCann) pro vided sufficient and reliable testimony that Johnson was responsible for between fifteen and fifty kilograms of cocaine.” Id. at 311. Moss appealed both his conviction and his sentence, challenging, among other things, “the quantity of cocaine used to determine his sentence.” United States v. Moss, No." } ]

[ { "docid": "2317448", "title": "", "text": "PHILLIPS, Chief Judge. This is an action under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), seeking to vacate an arbitration award. Appellant Amanda Bent Bolt Company (“the Company”) entered into a collective bargaining contract with the appel-lee labor union containing a no-strike clause. The contract provided that employees striking in violation of the no-strike clause were subject to discharge and that employees discharged for cause would lose their seniority. Twenty-eight employees engaged in a wild cat strike in violation of the no strike clause. All striking employees were discharged by the company. The Union processed the grievances of the employees according to the established contract procedure, which called for arbitration. The arbitrator awarded the employees reinstatement with full seniority. The company filed this action to vacate the award on the ground that the arbitrator exceeded his authority by granting relief which contradicted the express terms of the collective bargaining agreement. The District Court entered an order for summary judgment in favor of the Union. We reverse. The District Court correctly stated the genéral rule that arbitration as a means of settling labor disputes is favored and that courts refuse to review the merits of an arbitration award, seeking to effectuate the policy that labor disputes should be resolved by arbitration. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Caster Mold & Machine Co., 345 F.2d 429 (6th Cir.). Nevertheless “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” United Steelworkers v. Enterprise, supra," } ]

[ { "docid": "14237507", "title": "", "text": "a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency.” Id. at 597. In Minute Maid Co. v. Citrus Workers, Local 444, 331 F.2d 280, 281 (5th Cir., 1964), an arbitrator, finding that an employee had been wrongfully discharged, ordered that he be reinstated with back pay. The company argued that because the collective bargaining agreement did not provide for a back pay remedy, the award should not be enforced. Noting that the “contract did not exclude from arbitration either the subject matter or the remedy adopted by the arbiter,” we rejected this contention and held that the essence of the award was adequately grounded in the contract. See International Bhd. of Pulp Workers, Local 874 v. St. Regis Paper Co., supra; Lodge No. 12 v. Cameron Iron Works, 292 F.2d 112 (5th Cir., 1961). Another example illustrating the limited role of a court when reviewing an arbitrator’s award and indicating the expansive interpretation of the “essence” requirement is Amalgamated Meat Cutters of North America, Local 540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 819 (5th Cir., 1973). Neuhoff discharged certain employees for allegedly stealing meat from one of its packing plants. In the arbitration proceedings which followed the company was required to prove its allegations beyond a reasonable doubt in order to justify the discharges. The company failed to meet this standard, and the arbitrator ordered that the employees be reinstated. This court refused to deny enforcement. of this award, reasoning that in the absence of a different standard established by the agreement the arbitrator did not, contrary to the command of the arbitration clause, “add to, modify, detract from or alter [the agreement] in any way.” See United Steelworkers of America v. Amax Aluminum Mill Products, Inc., 451 F.2d 740 (9th Cir., 1971); Holly Sugar Corp. v. Distillery Workers Int’l Union, 412 F.2d 899 (9th Cir., 1969). See also International Ass’n. of Heat Insulators, Local 66 v. Leona Lee Corp., 489 F.2d 1032 (5th Cir., 1974). The nexus between the breach of the reopener" }, { "docid": "8867523", "title": "", "text": "established two absences per month standard. The arbitrator sustained the grievance and reinstated the employee with backpay. The employer contended that the right to discharge was strictly a function of management and the arbitrator’s award of reinstatement was beyond his authority where the employee had violated the rule. The United States Court of Appeals for the Eighth Circuit rejected the employer’s argument, stating: On its face, the agreement before us contains two clauses governing the discharge of employees, one of which provides that discharges be only upon proper cause. Thus, an arbitrator could hold that [the Company] does not retain complete control over discharges. In so holding, the arbitrator’s award took its [es- • sence] from the collective bargaining agreement. Id. at 317-18 (emphasis added). See also IAM, Local 389 v. San Diego Marine Construction Corp., 620 F.2d 736, 738-39 (9th Cir. 1980) (“[T]he arbitrator does have the power to determine when a matter is subject to Company discretion. When two plausible interpretations of a clause of a collective bargaining agreement exist, an arbitrator’s choice of one or the other ought to be honored.”) (emphasis in original); Timken Co., 492 F.2d at 1179 (“[I]n the present case the arbitrator could fairly construe the contract to confer upon himself the power to determine whether under the particular facts presented the employee was ‘properly’ discharged, even though he was technically found guilty of committing the act of striking the inspector.”). In Affiliated Food Distributors, Inc. v. Local 229, International Brotherhood of Teamsters, 483 F.2d 418, 420 (3d Cir. 1973), cert. denied, 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974), this court said that subsequent specification in a contract impliedly limits the meaning of a preceding generalization. See Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir. 1973). Where, however, it is possible that the arbitrator could have been interpreting the contract, his failure to apply correct contract principles is irrelevant; the arbitrator’s contract interpretation must be irrational before a reviewing court may disturb the award because it is “totally unsupported by principles of contract" }, { "docid": "7300134", "title": "", "text": "7, 114 F.3d 596, 599 (6th Cir.1997). But the arbitrator’s construction must “draw[ ] its essence from the collective bargaining agreement” rather than serve the arbitrator’s “own brand of industrial justice.” United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). This court has vacated arbitral awards in four types of cases: (1) an award conflicts with express terms of the collective bargaining agreement, see, e.g., Grand Rapids Die Casting Corp. v. Local Union No. 159, U.A.W., 684 F.2d 413 (6th Cir.1982); (2) an award imposes additional requirements that are not expressly provided in the agreement, see, e.g., Sears, Roebuck & Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983); (3) an award is without rational support or cannot be rationally derived from the terms of the agreement, see, e.g., Timken Co. v. Local Union No. 1123, United Steelworkers of America, 482 F.2d 1012 (6th Cir.1973); and (4) an award is based on general considerations of fairness and equity instead of the precise terms of the agreement, see, e.g., Local 342, United Auto Workers v. T.R.W., Inc., 402 F.2d 727 (6th Cir.1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1969). See Cement Divs., Nat. Gypsum Co. v. United Steelworkers of Am., et al., 793 F.2d 759, 766 (6th Cir.1986). In addition, Article XXXIII, § K of the Agreement specifically provides that an arbitrator “shall have no power to add to, subtract from, or modify in any way, any terms of the Agreement, nor shall he exercise any responsibility or function of the Hospital.” In the instant case, as observed by the district court, the arbitrator’s decision conflicts with express provisions in the Agreement and imposes requirements on ARH which do not flow from the Agreement itself. The Agreement explicitly reserves to management the power to direct the work force and fix the number of hours of work to the management. Moreover, in Article XV, the Agreement expressly provides that “[e]mployees" }, { "docid": "21906906", "title": "", "text": "of discipline without any significant way to leave the circle. His union can only stand by. I further find that the original suspension (not designated in any way, manner or form as an investigative suspension) shocks the conscience of this arbitrator, and the resulting discharge must be set aside. The parties should revise the language. The grievant has been suspended and that is sufficient. He cannot be tried twice. Almost immediately after this statement comes the arbitrator’s award: I set aside the discharge, the company not having sustained its burden and suspend the grievant for two months from June 20th through August 20, 1978. I retain jurisdiction of this dispute for four months. I appoint Joseph R. Daniel and Don King to serve as my aides in making sure that this difficulty of absenteeism does not recur as pertains to this grievant, or at least is drastically minimized. I want to assure myself that Cook resolves this difficulty. A further hearing may be held in the event that the problem continues. The company brought this action to have the arbitrator’s award set aside. The union counterclaimed for enforcement of the award. The District Court noted that if the arbitrator was deciding that the discharge of Cook had to be set aside because the procedure of section 4 was offensive, the arbitration award did not draw its essence from the collective bargaining agreement and should not be enforced. However, the court chose instead to construe the arbitrator’s decision as stating that under the collective bargaining agreement appellant did not have just cause to discharge an employee for absenteeism if the reason for the absenteeism was personal difficulties on the part of the employee made known to the company at the time of discharge. The District Court found that the arbitrator had the authority to make such a decision under this Court’s opinion in Timken Company v. United Steelworkers of America, 492 F.2d 1178 (6th Cir. 1974). The District Court granted the union’s motion for summary judgment and ordered enforcement of the award. The District Court’s analysis represents an heroic effort to" }, { "docid": "8792992", "title": "", "text": "The arbitrator ordered that all of the employees should be reinstated with seniority but without backpay. Subsequently, the company filed this action under section 10 of the United States Arbitration Act of 1947,9 U.S.C. § 10, to vacate or modify the award on the ground that the arbitrator had exceeded his authority by granting relief in contravention of the express terms of the collective bargaining agreement. The district court vacated the order of the arbitrator, primarily on the authority of Amanda Bent Bolt Co. v. U.A.W., 451 F.2d 1277 (6th Cir. 1971), finding that the award of the arbitrator was contrary to the express language of the contract. We conclude that Amanda is not controlling in the present case and reverse. In Amanda, this court held that when an employer reserves the unequivocal right to discharge employees who violate the no-strike provision of a collective bargaining agreement, an arbitrator has no authority to order reinstatement. In the present case, however, the company expressly agreed that the discharge of employees for participating in a strike would be subject to the grievance procedure set forth in the contract. This procedure included arbitration. In Amanda, we recognized the following general rule: [Tjhat arbitration is a means of settling labor disputes is favored and that courts refuse to review the merits of an arbitration award, seeking to effectuate the policy that labor disputes should be resolved by arbitration. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593,80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Caster Mold & Machine Co., 345 F.2d 429 (6th Cir.). 451 F.2d at 1278. We conclude that the cases cited in the foregoing quotation and the opinion of this court in Timken Co. v. Local 1123, United Steelworkers, 492 F.2d 1178 (6th Cir. 1974), require reversal. Accordingly, the judgment of the district court is reversed and the case is remanded with instructions to reinstate" }, { "docid": "21906911", "title": "", "text": "Telephone and Telegraph Co., 628 F.2d 644, 647 (1st Cir. 1980); United Steelworkers of America v. Timken Roller Bearing Co., 324 F.2d 738, 741 (6th Cir. 1963). A case such as this, where the arbitrator did not decide the question presented to him, is an appropriate one for remand to avoid the draconian choice of penalizing either the company or the employee for what is, after all, the arbitrator’s failure. We suggest to the District Court that remand should be to a different arbitrator. The previous arbitrator’s outburst against the language of the contract compromises the appearance of impartiality to which the parties are entitled. If the parties are unable to agree to a different arbitrator, the District Court is entitled to appoint a neutral arbitrator. Hart v. Overseas National Airways, Inc., 541 F.2d 386 (3d Cir. 1976); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir. 1972). Accordingly, the judgment of the District Court is reversed and the case remanded, with directions to remand to an arbitrator for further proceedings. . In view of our disposition of the case we need not decide whether the arbitrator would have exceeded his authority had he construed the collective bargaining agreement to give him the power to determine whether, even if Cook was guilty of excessive absenteeism, excessive absenteeism because of personal difficulties was not just cause for discharge. Cf. Timken Company v. United Steelworkers of America, 492 F.2d 1178 (6th Cir. 1974). But see Amanda Bent Bolt Co. v. International Union, UAW, 451 F.2d 1277 (6th Cir. 1971); International Brotherhood of Firemen v. Nestle Co., Inc., 630 F.2d 474 (6th Cir. 1980). We do note, however, that the agreement in this case, unlike the collective bargaining agreement described in Timken, specifically reserved to the employer the right to formulate work rules and the discipline for violation of those rules. . We particularly commend footnote 5 of the opinion in New England Telephone to appellant’s attention." }, { "docid": "18890318", "title": "", "text": "the Supreme Court also said in that opinion: “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice . . . [H]is award is legitimate only so long as it draws its essence from this collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 80 S.Ct. at 1361. [Emphasis supplied.] This “essence” concept has been consistently applied by the lower federal courts. See e. g. Timken Co. v. Local Union No. 1123, United Steelworkers of Am., 482 F.2d 1012 (6th Cir. 1973); Amanda Bent Bolt Co. v. International U. U.A.A., A.I.W., 451 F.2d 1277 (6th Cir. 1971); Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228 (5th Cir. 1970); Master S.M.W. & C. R. Ass’n. of R. I. Inc. v. Local Union No. 17, D.C., 397 F.Supp. 1372 (1975); Amerada Hess Corp. v. Local 22026 Fed. Lab. Union, AFL-CIO, 385 F.Supp. 279 (1974). Plaintiff argues that the arbitrator exceeded his authority by entering an award which is contrary to the express language of Section 25 of the contract granting it the right to discharge striking employees. The Court agrees. In Amanda Bent Bolt Co. v. International 17., U.A.A., A.I.W., supra, the Sixth Circuit dealt with a very similar situation. In that case, the arbitrator determined that employees striking in violation of a no-strike provision in the collective bargaining agreement should be reinstated with back pay. The court held that as said award was directly contrary to express language of the contract allowing the company to discharge striking employees, the arbitrator had exceeded his authority under the contract. Defendants argue that Amanda Bent Bolt is not determinative of this action. Specifically, they contend that that case is distinguishable because Section 25 of the instant contract expressly provides that any discipline effected by plaintiff for violations of the no-strike clause is subject to arbitration, whereas the Amanda Bent Bolt contract did not have such a clause. This" }, { "docid": "21906907", "title": "", "text": "action to have the arbitrator’s award set aside. The union counterclaimed for enforcement of the award. The District Court noted that if the arbitrator was deciding that the discharge of Cook had to be set aside because the procedure of section 4 was offensive, the arbitration award did not draw its essence from the collective bargaining agreement and should not be enforced. However, the court chose instead to construe the arbitrator’s decision as stating that under the collective bargaining agreement appellant did not have just cause to discharge an employee for absenteeism if the reason for the absenteeism was personal difficulties on the part of the employee made known to the company at the time of discharge. The District Court found that the arbitrator had the authority to make such a decision under this Court’s opinion in Timken Company v. United Steelworkers of America, 492 F.2d 1178 (6th Cir. 1974). The District Court granted the union’s motion for summary judgment and ordered enforcement of the award. The District Court’s analysis represents an heroic effort to ground the arbitrator’s award in the collective bargaining agreement. However, a fair reading of the arbitrator’s decision does not support the court’s conclusion that he held that an employer fails to establish just cause to fire an employee for excessive absenteeism where that absenteeism is due to personal problems which the employer learns of at the time of discharge. The arbitrator certainly did not say this was his holding, while he did say the discharge resulting from the “offensive” procedure of section 4 must be set aside. The arbitrator made no attempt to explain his conclusion in terms of his finding that Cook had personal difficulties. There is no reason to accord this finding any greater significance in explaining the arbitrator’s decision than is accorded his findings that Cook was competent and had trouble complying with the absenteeism rule, and that absenteeism was a chronic problem in general. None of these findings have any apparent relevance to the opinion. Thus, the only reasonable conclusion to draw from the arbitrator’s opinion is that the basis for" }, { "docid": "23235821", "title": "", "text": "not expressly provided in the agreement, see, e.g., Sears, Roebuck & Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983); (3) an award is without rational support or cannot be rationally derived from the terms of the agreement, see, e.g., Timken Co. v. United Steelworkers of America, 482 F.2d 1012 (6th Cir.1973); and (4) an award is based on general considerations of fairness and equity instead of the precise terms of the agreement, see, e.g., Local 342, United Auto Workers v. T.R. W, Inc., 402 F.2d 727 (6th Cir.1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1969). The Company claims that the Arbitrator’s rulings on estoppel and the “300-week minimum” fell within all four enumerated grounds. The portion of the Arbitrator’s decision that the Company was responsible to pay 300 weeks of guaranteed benefits is reasonable and does “draw its essence” from the agreements. The second aspect of his decision that concluded that senior employees who had elected voluntary layoff status prior to the arbitral decision were unaware that they would receive only part or no guaranteed benefits, falls within a different category. Because of perceived inequity to voluntaries, the Arbitrator decided that the Company was estopped from charging the 70 hours of benefits it paid to Group B employees against the total 300 hours owed. The Arbitrator imposed a notice requirement, quoting an arbitration treatise for the proposition that “estoppel can arise ‘where one party, with actual or constructive knowledge of his rights, stands by and offers no protest with respect to the conduct of the other, thereby reasonably inducing the latter to believe that his conduct is fully concurred in____’” Arbitrator’s Opinion and Award, No. 90 at 13-14 (Lipson, A.) (March 23, 1983) (quoting Elkouri & Elkouri, How Arbitration Works at 349 (1973)). Determining that “fairness” dictated such estoppel, the Arbitrator therefore required the Company to pay 370 weeks of guaranteed benefits rather than the 300 weeks specified in the agreements. The notice and estoppel aspects of the arbitral" }, { "docid": "13463989", "title": "", "text": "authority to disregard or modify plain and unambiguous language in the collective bargaining agreement. See Sears, Roebuck and Co., 683 F.2d 154; Timken Co., 482 F.2d 1012; Amanda Bent Bolt Co., 451 F.2d 1277; T.R.W., Inc., 402 F.2d 727. As we said in Sears, Roebuck and Co., the “clause before us simply cannot be characterized as ‘ambiguous’ or subject to conflicting interpretations.” Sears, Roebuck and Co., 683 F.2d at 156. We rely on several factors in reaching this conclusion. First, we note that a “collective bargaining agreement is after all a contract,” Timken Co. v. Local Union No. 1123, United Steelworkers of America, 482 F.2d 1012, 1015 (6th Cir.1973) and courts should “interpret the words in a contract of this nature to give them their ordinary and reasonable meaning,” Penn Packing Co., Inc., v. Amalgamated Meat Cutters and Butcher Workmen, Local 195, 497 F.2d 888, 891 (3rd Cir. 1974) (footnote omitted). The words “without redress” as they appear in the provision in question have an ordinary meaning that is manifest without any need for construction: once it is determined that an employee has engaged in insubordination, the employer’s decision to discharge the employee is not open to review by the arbitrator. Second, it is highly significant that in attempting to demonstrate the ambiguity of the provision on insubordination, the arbitrator was unable to hypothesize a construction that would empower him to modify the employer’s determination of an appropriate sanction for insubordination. The arbitrator postulated three possible meanings which could be given to the phrase “without redress.” First, it could mean that an employee could not even grieve a discharge for insubordination. Second, this language could mean “that a discharge always is warranted for certain stated infractions.” Third, it could mean that “once the penalty was determined by the Company, it could not be modified or reduced by an arbitrator.” Under any of these constructions, the net effect is that the Company is granted the power to determine the appropriate sanction for insubordination and that this determination is not subject to arbitral review. Despite his inability to construe the phrase “without" }, { "docid": "8867525", "title": "", "text": "construc tion.” See Ludwig, 405 F.2d at 1128. We do not think that the arbitrator’s award in this case is irrational. The Company argues that its uniform past practice of discharging employees who violate article XXVI, section B(l) is an independent ground for vacating the award. There is no doubt that such a practice is relevant to the question facing the arbitrator, see Warrior & Gulf, 363 U.S. at 581-82, 80 S.Ct. at 1352-53 (“[Arbitrator’s source of law [includes] the industrial common law — the practices of the industry and the shop .... ”), and perhaps to the courts where the arbitrator has looked to those practices as part of the agreement, see NF&M Corp., 524 F.2d at 759; H. K. Porter Co. v. United Saw Workers, 333 F.2d 596, 600 (3d Cir. 1964). We do not, however, think it is relevant to the question before this court: whether the arbitrator’s award draws its essence from the contract. But see Timken Co. v. Local 1123, United Steelworkers, 482 F.2d 1012, 1014 (6th Cir. 1973) (vacating an arbitration award where arbitrator’s award was contrary to shop practices). The only way this uniform past practice could have any relevance to our inquiry is if the Company could show that it was a uniform past practice accepted by the Union to discharge all employees who have been found absent for more than four days without good and sufficient cause. The statistic alone does not preclude a finding that employees may have been absent without good and sufficient cause yet not discharged for lack of “just cause.” III. The order of the district court will be reversed and the case remanded for proceedings consistent with this opinion. . We recognize that this is only one of several possible grounds for vacating an award deemed arbitrable. An award may be vacated where it is shown that there was fraud, partiality, or other misconduct on the part of the arbitrator; or where the award violates a specific command of some law — usually the National Labor Relations Act; or because the award is too vague and" }, { "docid": "18890317", "title": "", "text": "in a strike, slowdown, stoppage of work, or interference with Company’s operation during the term of this Agreement, any discipline or discharge as a result of the foregoing is subject to the grievance procedure.” Although plaintiff advances a number of the grounds contained in Section 10 of the United States Arbitration Act of 1947, 9 U.S.C. § 10, the Court concludes that sub-paragraph (d) of said section is dispositive of this action. Said subparagraph provides that an award may be vacated 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.” As stated by the Supreme Court in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960): “It is the arbitrator’s construction that was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Nevertheless, the Supreme Court also said in that opinion: “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice . . . [H]is award is legitimate only so long as it draws its essence from this collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 80 S.Ct. at 1361. [Emphasis supplied.] This “essence” concept has been consistently applied by the lower federal courts. See e. g. Timken Co. v. Local Union No. 1123, United Steelworkers of Am., 482 F.2d 1012 (6th Cir. 1973); Amanda Bent Bolt Co. v. International U. U.A.A., A.I.W., 451 F.2d 1277 (6th Cir. 1971); Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228 (5th Cir. 1970); Master S.M.W. & C. R. Ass’n. of R. I. Inc. v. Local Union No. 17, D.C., 397 F.Supp. 1372 (1975); Amerada Hess Corp. v. Local 22026 Fed. Lab. Union, AFL-CIO, 385" }, { "docid": "5800452", "title": "", "text": "or modifies the terms of the rule. Shop Rule No. 3, which was unilaterally adopted by Kewanee, provides: “Employees must notify Shop Office if tardiness is to exceed fifteen (15) minutes. Notification must be given prior to anticipated absences of not later than thirty (30) minutes after the start of a shift. Excessive tardiness or frequent or repetitive absence from work are cause for dismissal.” Kewanee claims the effect of the arbitrator’s decision limits the application of Rule No. 3 to only cases where employees are absent without just cause. The award of an arbitrator finding a discharge improper has been upheld where there is “tension” between a shop rule and a term of the contract. Campo Machining Co. v. Local Lodge No. 1926, Etc., 536 F.2d 330 (10th Cir. 1976). There, the contract provided that discharges be only on “good and sufficient cause,” while the shop rule stated that a single incident of leaving the plant during a shift without permission would be punished by discharge. The court held that the arbitrator in not finding sufficient cause for the discharge was resolving the “tension” between the shop rule and the discharge clause of the contract; and in doing so, was engaged in construction and interpretation of the collective bargaining agreement. Id. at 333. Similarly, an arbitrator’s award that a discharge was without proper cause was upheld although the employee technically violated a company rule by striking an inspector. Timken Company v. United Steelworkers of America, 492 F.2d 1178 (6th Cir. 1974). The arbitrator could take into account the “tension” between the application of Shop Rule No. 3 and the provision of the agreement that discharges be with proper cause. It is a question of interpretation and construction under the facts — what relationship exists between the two provisions. We cannot interfere with the arbitrator’s award “unless it can be said with positive assurance that the contract is not susceptible of the arbitrator’s interpretation.” Intern. Broth. of Elect. Wkrs. v. Prof. Hole, 574 F.2d 497, 503 (10th Cir. 1978). See also Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123" }, { "docid": "15731280", "title": "", "text": "has not been expressly relinquished by contract is no right at all.” In this case, the absolute right of the employer to fix the discipline, where a violation of Section 1 of Article X has been found, is if anything, clearer than in American Thread, Amanda Bent Bolt or United Automobile. The agreement here describes the employer’s right as an “unqualified right to discharge or discipline” (Italics added). The term “unqualified,” when used in a contract, is to be given its popular meaning unless the agreement clearly shows otherwise; and that popular meaning is “completely,” “absolutely” and “entirely.” So defined this “unqualified right” of the Company was not to be nullified or modified by any award of the arbitrator. To grant the arbitrator a right to void the “unqualified right” of the Company would be to invest him with the power, in violation of the specific provisions of the agreement itself, to alter the agreement to accord with “his own brand of industrial justice.” That is not the arbitrator’s province. We find nothing in Tobacco Wkrs. Int. U., Local 317 v. Lorillard Corporation (4th Cir. 1971), 448 F.2d 949, Lynchburg Foundry Company v. United Steelworkers of America, Local 2556 (4th Cir. 1968), 404 F.2d 259, or Timken Company v. United Steelworkers of America (6th Cir. 1974), 492 F.2d 1178, at variance with the conclusion reached by us. Neither in Lynchburg Foundry nor in Lorillard Corporation was there any provision in the collective bar-' gaining agreement vesting the “unqualified right” to discipline or discharge in the employer; and this distinction was clearly recognized and pointed out by the Court in Timken. In fact, in Timken, the court stated unequivocally that the absence of such a provision clearly distinguished that case “from [the] decision in Local 342, United Automobile, Aerospace, and Agricultural Workers v. T.R.W., 402 F.2d 727, 731 (6th Cir. 1968), cert. den. 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1968), and from the decision of the Fourth Circuit in Textile Workers Union v. American Thread Co., 291 F.2d 894, 899 (4th Cir. 1961).” Since we are of opinion" }, { "docid": "5800453", "title": "", "text": "finding sufficient cause for the discharge was resolving the “tension” between the shop rule and the discharge clause of the contract; and in doing so, was engaged in construction and interpretation of the collective bargaining agreement. Id. at 333. Similarly, an arbitrator’s award that a discharge was without proper cause was upheld although the employee technically violated a company rule by striking an inspector. Timken Company v. United Steelworkers of America, 492 F.2d 1178 (6th Cir. 1974). The arbitrator could take into account the “tension” between the application of Shop Rule No. 3 and the provision of the agreement that discharges be with proper cause. It is a question of interpretation and construction under the facts — what relationship exists between the two provisions. We cannot interfere with the arbitrator’s award “unless it can be said with positive assurance that the contract is not susceptible of the arbitrator’s interpretation.” Intern. Broth. of Elect. Wkrs. v. Prof. Hole, 574 F.2d 497, 503 (10th Cir. 1978). See also Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969). This cannot be said here. The judgment of the District Court is reversed. . Kewanee claimed that it had a right to discharge Goesling even if the absence, which precipitated his discharge, was caused by a bona fide illness. . On the other hand, [The arbitrator] does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelwkrs. of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). . Although our interpretation of the agreement in light of the facts surrounding the discharge may differ, such disagreement has no bearing in our review. Our role is not to review the merits. United Steelwkrs. v. American Mfg. Co., 363 U.S. 564, 568, 80" }, { "docid": "13463988", "title": "", "text": "(6th Cir.1980); Mistletoe Express Service v. Motor Expressmen’s Union, 566 F.2d 692, 695 (10th Cir.1977); Amanda Bent Bolt Co. v. UAW, 451 F.2d 1277, 1280 (6th Cir.1971); Local 342, UAW v. T.R.W., Inc., 402 F.2d 727, 730-31 (6th Cir.1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1969). Thus, if the agreement is ambiguous, the arbitrator could construe it as allowing him to modify a sanction for insubordination; if there is any basis for that construction in the agreement, we lack authority to alter the arbitrator’s determination. On the other hand, if the agreement unambiguously allocated the power to discharge for insubordination solely to the Company, then the arbitrator was without power to modify the Company’s sanction. Upon reviewing the record and the arguments of the parties, we find that the district court was correct in concluding that the agreement’s statement that “[a]ny employee may be discharged without redress if proven guilty of ... insubordination” is unambiguous. This case is therefore governed by those authorities which hold that an arbitrator is without authority to disregard or modify plain and unambiguous language in the collective bargaining agreement. See Sears, Roebuck and Co., 683 F.2d 154; Timken Co., 482 F.2d 1012; Amanda Bent Bolt Co., 451 F.2d 1277; T.R.W., Inc., 402 F.2d 727. As we said in Sears, Roebuck and Co., the “clause before us simply cannot be characterized as ‘ambiguous’ or subject to conflicting interpretations.” Sears, Roebuck and Co., 683 F.2d at 156. We rely on several factors in reaching this conclusion. First, we note that a “collective bargaining agreement is after all a contract,” Timken Co. v. Local Union No. 1123, United Steelworkers of America, 482 F.2d 1012, 1015 (6th Cir.1973) and courts should “interpret the words in a contract of this nature to give them their ordinary and reasonable meaning,” Penn Packing Co., Inc., v. Amalgamated Meat Cutters and Butcher Workmen, Local 195, 497 F.2d 888, 891 (3rd Cir. 1974) (footnote omitted). The words “without redress” as they appear in the provision in question have an ordinary meaning that is manifest without any need for construction:" }, { "docid": "3640679", "title": "", "text": "and its payment from the federal funding source as [a cost-of-living increase].” Arb. Op. at 8. Whether the “becomes” phrase was a slip of the pen or a slip in thought, it was still “the above language” — the contract language- — that he was trying to figure out. Even the district court characterized these efforts as construction: “[T]he Arbitrator considered evidence to aid in construing the [agreement] when, in fact, no construction was necessary.” 380 F.Supp.2d at 890 (emphasis added). All that happened here is that the arbitrator committed a legal error, a serious legal error to be sure, but an error of interpretation nonetheless, which does not authorize us to vacate the award. What makes this case difficult is not figuring out what the contract means and it is not applying the Supreme Court’s directives in this area; it is faithfully applying our circuit’s four-part test for determining whether to vacate an arbitration award. Twenty years ago, the court attempted to summarize the four settings in which the circuit had vacated an award because it failed to “draw[] its essence” (Enter. Wheel, 363 U.S. at 597, 80 S.Ct. 1358) from the contract: An award fails to derive its essence from the agreement when (1) an award conflicts with express terms of the collective bargaining agreement, see, e.g., Grand Rapids Die Casting Corp. v. Local Union No. 159, U.A.W., 684 F.2d 413 (6th Cir.1982); (2) an award imposes additional requirements that are not expressly provided in the agreement, see, e.g., Sears, Roebuck & Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir.1982) ...; (3) an award is without rational support or cannot be rationally derived from the terms of the agreement, see, e.g., Timken Co. v. United Steelworkers of America, 482 F.2d 1012 (6th Cir.1973); and (4) an award is based on general considerations of fairness and equity instead of the precise terms of the agreement, see, e.g., Local 342, United Auto Workers v. T.R.W., Inc., 402 F.2d 727 (6th Cir.1968). Cement Divs., Nat’l Gypsum Co. v. United Steelworkers, Local 135, 793 F.2d 759, 766 (6th" }, { "docid": "13463985", "title": "", "text": "found that Childress did commit insubordination but nonetheless modified the Company’s sanction, the question then becomes one of the relative powers of the Company and the arbitrator under the collective bargaining agreement. The Company successfully argued before the district court that the provisions of Article IX addressing the power to discharge for insubordination unambiguously vested sole discretion with the Company to determine whether a discharge for Childress’ insubordination was appropriate. The Union argues that the arbitrator correctly found this provision to be ambiguous and construed the ambiguity to permit arbitral review of the Company’s decision to discharge Childress for insubordination. The district court was without authority, the Union argues, to reinterpret the agreement after the arbitrator found it ambiguous. Thus, the central issue is whether determining the appropriate sanction for insubordination is a function delegated solely to the Company or whether it is a matter initially for the Company but subject to review and modification by the arbitrator. The resolution of this case turns on whether the phrase “without redress” is ambiguous. It is well established that the power to construe ambiguous contract provisions lies with the arbitrator, see, e.g., United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409 (1960) (a court “should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement”); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960) (“the question of interpretation of the collective bargaining agreement is a question for the arbitrator”); Timken Co. v. United Steelworkers of America, 492 F.2d 1178, 1180 (6th Cir. 1974) (“[i]f a collective bargaining agreement is unclear and ambiguous in its terms, its construction should normally be determined by the arbitrator”), and that an arbitrator may reduce an employer’s sanction for proven misconduct when the agreement can be fairly interpreted to give the arbitrator that power, see, e.g., Anaconda Co. v. District Lodge No. 27 of the International Association of Machinists, 693" }, { "docid": "6248467", "title": "", "text": "Storer’s application. The court reasoned that the “arbitrator was entitled to draw reasonable inferences and conclusions from the agreement in evidence before him.” It is very well settled that the courts are generally required to refrain from reviewing the merits of an arbitrator’s award due to the policy favoring arbitration as a means of resolving labor disputes. This was established in the Steelworkers Trilogy and has been applied numerous times by this court. But there are at least two important exceptions to this general rule. First, “the arbitrator is confined to the interpretation and application of the collective bargaining agreement, and although he may construe ambiguous contract language, he is without authority to disregard or modify plain and unambiguous provisions.” Detroit Coil Co. v. Int’l Ass’n of Machinists, 594 F.2d 575, 579 (6th Cir. 1979), citing cases. Thus, the courts are empowered to set aside an award if the arbitrator exceeds these confines. Second, “although a court is precluded from overturning an award for errors in the determination of factual issues, ‘[nevertheless, if an examination of the record before the arbitrator reveals no support whatever for his determinations, his award must be vacated.’ ” Id. at 580-81, citing NF & M Corp. v. United Steelworkers of America, 524 F.2d 756, 760 (3d Cir. 1975). See also Timken Co. v. Local Union No. 1123 United Steelworkers of America, 482 F.2d 1012, 1014-15 (6th Cir. 1973). Storer has not argued that the arbitrator went beyond the plain meaning of the contract in construing it to bind Storer to pay to the union’s members whatever amounts the union reasonably represented to them that they would receive. Rather, Storer has contested only the arbitrator’s factual finding that the union did indeed represent to its members that they would receive the credited amounts in their profit sharing accounts. We agree with Storer that there is absolutely no evidentiary support in the record before the arbitrator for this factual finding. Our search of the record revealed no testimony or documentary evidence to this effect. The union’s brief to this court has pointed to no such evidence" }, { "docid": "8867524", "title": "", "text": "of one or the other ought to be honored.”) (emphasis in original); Timken Co., 492 F.2d at 1179 (“[I]n the present case the arbitrator could fairly construe the contract to confer upon himself the power to determine whether under the particular facts presented the employee was ‘properly’ discharged, even though he was technically found guilty of committing the act of striking the inspector.”). In Affiliated Food Distributors, Inc. v. Local 229, International Brotherhood of Teamsters, 483 F.2d 418, 420 (3d Cir. 1973), cert. denied, 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974), this court said that subsequent specification in a contract impliedly limits the meaning of a preceding generalization. See Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir. 1973). Where, however, it is possible that the arbitrator could have been interpreting the contract, his failure to apply correct contract principles is irrelevant; the arbitrator’s contract interpretation must be irrational before a reviewing court may disturb the award because it is “totally unsupported by principles of contract construc tion.” See Ludwig, 405 F.2d at 1128. We do not think that the arbitrator’s award in this case is irrational. The Company argues that its uniform past practice of discharging employees who violate article XXVI, section B(l) is an independent ground for vacating the award. There is no doubt that such a practice is relevant to the question facing the arbitrator, see Warrior & Gulf, 363 U.S. at 581-82, 80 S.Ct. at 1352-53 (“[Arbitrator’s source of law [includes] the industrial common law — the practices of the industry and the shop .... ”), and perhaps to the courts where the arbitrator has looked to those practices as part of the agreement, see NF&M Corp., 524 F.2d at 759; H. K. Porter Co. v. United Saw Workers, 333 F.2d 596, 600 (3d Cir. 1964). We do not, however, think it is relevant to the question before this court: whether the arbitrator’s award draws its essence from the contract. But see Timken Co. v. Local 1123, United Steelworkers, 482 F.2d 1012, 1014 (6th Cir. 1973) (vacating" } ]

[ { "docid": "13139604", "title": "", "text": "Schlup standard. Id. at *9. In this motion, Wright argues that the district court erred in requiring him to present “new” evidence. The courts of appeals disagree as to whether Schlup requires “newly discovered” evidence or merely “newly presented” evidence. Compare Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir.2005) (“Evidence is only new if it was ‘not available at trial and could not have been discovered earlier through the exercise of due diligence.’ ” (quoting Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001))), and Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.2004) (requiring new evidence that was not available at the time of trial), with Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir.2003) (“All Schlup requires is that the new evidence is reliable and that it was not presented at trial.”), and Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003) (requiring “newly presented,” not newly available evidence). Neither party cites controlling case law from this court. We, however, need not address this circuit split or determine whether Wright has established actual innocence because he has not demonstrated that jurists of reason would find the merits of his Brady claims debatable. Cf. Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir.1998) (assuming arguendo that petitioner had satisfied Schlup and considering claim on the merits) 2 The suppression of evidence favorable to the accused violates due process where that evidence is material to guilt or punishment. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This duty to disclose extends to both impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence is suppressed when the prosecution fails to disclose it even when it is known only to police investigators but not the prosecutor. Kyles, 514 U.S. at 438, 115 S.Ct. 1555. Evidence is “material” when its suppression creates a reasonable probability of a different result. Id. at 433, 115 S.Ct. 1555. The materiality of all suppressed evidence must be considered cumulatively. Id. at 437, 115 S.Ct. 1555. Assuming Wright’s Brady claims" } ]

[ { "docid": "14814217", "title": "", "text": "that he is entitled to have this claim reviewed, as it is barred on independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546; see also Moore v. Roberts, 83 F.3d 699, 703 (5th Cir.1996) (no evidence Mississippi inconsistently applies time bar); Sones v. Hargett, 61 F.3d 410, 417 (5th Cir.1995) (Mississippi time bar adequate and independent state law ground); Johnson v. Puckett, 176 F.3d 809, 815 n. 3 (5th Cir.1999). In order to overcome the imposition of the procedural bar, Petitioner must demonstrate cause and prejudice, which he fails to do. Petitioner cannot argue the ineffectiveness of post-conviction counsel to demonstrate “cause,” as there is no right to counsel on state post-conviction review. See Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.2002) (no “cause” where there is no right to counsel); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.2001). Similarly, Petitioner’s argument regarding Jackson fails to provide him with relief, as he has not persuaded that it was an “intervening decision” or that his claim is based on previously undiscoverable facts. Although not necessary to the disposition of this claim, the Court finds this issue otherwise without merit. The affidavits attached to the second post-conviction application, which are also attached to the current petition, fail to present any new, significant evidence that was not introduced at trial. Mrs. Wiley’s affidavit establishes she would have testified as to Petitioner’s difficult family history and childhood, head injuries he suffered, his attempts at suicide, and his qualities as a husband and father. (Pet. Memo 52, Ex. A). Mrs. Butler would have testified that she acted as a parent to Petitioner while his mother struggled with mental and emotional problems, Petitioner’s physical and mental deficiencies in childhood, the exposure to traumatic events he has endured, and to his “quiet and loving nature.” (Pet. Memo 52, Ex. B). Mr. Thacker would have provided character evidence of Petitioner’s kindness toward others. (Pet. Memo 53, Ex. C). The Court has reviewed the information that was presented at trial and determines that the substance of the “omitted” information was" }, { "docid": "17841751", "title": "", "text": "that, because he did not seek review of his ineffective assistance of counsel claim by the Oregon Supreme Court in his first state post-conviction proceeding, it is procedurally defaulted. He argues, however, that this default should be excused because he is actually innocent and therefore entitled to present the merits of his underlying claims. The district court denied Sistrunk’s petition. In her findings and recommendations, the magistrate judge specifically stated that, although it was true that Sis-trunk’s counsel had committed errors durr ing the state court,proceedings, Sistrunk could not demonstrate that Dr. Bays’ impermissible vouching for the victim’s testimony or the evidence of the smooth condition of Sistrunk’s penis constituted the type of “new evidence” necessary to pass through the Schlup gateway to reach Sis-trunk’s claims of constitutional error. On de novo review, the district court adopted the magistrate judge’s findings and recommendations, and denied the writ. Sistrunk v. Armenakis, 1999 WL 717214 (D.Or.1999). This timely appeal followed. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. A divided panel of this court affirmed the district court. Sistrunk v. Armenakis, 271 F.3d 1174, 1181 (9th Cir. 2001). We subsequently granted rehearing en banc. Sistrunk v. Armenakis, 279 F.3d 1063(9th Cir.2002). II. STANDARD OF REVIEW We review de novo the denial of a petition for writ of habeas corpus. Karis v. Calderon, 283 F.3d 1117, 1126(9th Cir. 2002). III. DISCUSSION The sole issue on appeal is whether Sistrunk has presented new evidence sufficient to allow him to avoid the procedural default of his ineffective assistance of counsel claim under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In order to present otherwise procedurally barred claims to a federal habeas court, a petitioner must come forward with sufficient proof of his actual innocence to bring him “within ‘the narrow class of cases ... implicating a fundamental miscarriage of justice.’ ” Id. at 314-15, 115 S.Ct. 851(quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). Actual innocence can be shown when a petitioner “presents evidence of innocence so strong that a" }, { "docid": "19400458", "title": "", "text": "corpus plays a vital role in protecting constitutional rights.\" Id., at ----, 130 S.Ct., at 2562 (citations and internal quotation marks omitted). III Having rejected the State's argument that § 2244(d)(1)(D) precludes a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State's further objection to the Sixth Circuit's opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA's statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins' petition. While formally distinct from its argument that § 2244(d)(1)(D)'s text forecloses a late-filed claim alleging actual innocence, the State's contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence \"could have been discovered through the exercise of due diligence.\" It would be bizarre to hold that a habeas petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar § 2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F.3d, at 673 (\"Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners ... seek [an equitable exception only] when they were not reasonably diligent in complying with § 2244(d)(1)(D).\"). While we reject the State's argument that habeas petitioners who assert convincing actual-innocence claims must prove diligence to cross a federal court's threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner's proof of innocence. To invoke the miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner \"must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.\" Schlup, 513 U.S., at 327, 115 S.Ct. 851. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowledges. See" }, { "docid": "22476245", "title": "", "text": "Lambert was entitled to some relief effected a waiver of the exhaustion objection. The Commonwealth filed a timely notice of appeal on April 22, 1997. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. In a federal habeas corpus proceeding, we exercise plenary review of the district court’s legal conclusions and apply a clearly erroneous standard to the court’s factual findings. Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.1992) (citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989)). II. We note at the outset that the parties do not dispute that Lambert’s petition includes claims which were not presented to the state court. Unlike the district court, however, we cannot dispense with consideration of the exhaustion and procedural default claims in favor of reaching the merits of Lambert’s claim of actual innocence. Rath er, we find that Supreme Court precedent and the AEDPA mandate that prior to determining the merits of her petition, we must consider whether Lambert is required to present her unexhausted claims to the Pennsylvania courts. We turn, therefore, to a discussion of exhaustion of state claims under the AEDPA. A. It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus filed by a person incarcerated from a judgment of a state court unless the petitioner has first exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A); Toulson v. Beyer, 987 F.2d 984 (3d Cir.1998). The exhaustion requirement is excused, however, where no available state corrective process exists or the particular circumstances of the ease render the state process ineffective to protect the petitioner’s rights. 28 U.S.C. §§ 2254(b)(l)(B)(i) and (ii). A petitioner will not be deemed to have exhausted the available state court remedies so long as she has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(e). A petitioner who has raised an issue on direct appeal, however, is not required to raise it again in a state post-conviction proceeding. Evans v. Court of Common Pleas, Delaware" }, { "docid": "14439595", "title": "", "text": "claim. On the ineffective assistance claim raising trial counsel’s failure to move to suppress petitioner’s statements, the magistrate judge similarly concluded that petitioner had failed to establish either the requisite deficiency of trial counsel’s performance or prejudice resulting therefrom. Slip op. at 25-27. Finally, the magistrate judge found no merit to petitioner’s claim that the state trial court should have granted petitioner’s motion for a new trial based upon newly discovered evidence showing actual innocence. Slip op. at 28-30. The evidence which petitioner relies upon is the testimony of Ronald Ratigen, who was Reimers’ jail cellmate following Reimers’ arrest. Ratigen testified at Billy Allen’s trial regarding an alleged statement made by Reimers while in jail, in which Reimers allegedly stated that he was in jail for “killing [Welling]” and that “it wasn’t supposed to happen that way.” Petitioner argues that this evidence reveals that he is actually innocent of first degree murder. Without considering whether petitioner had procedurally defaulted on his claim that the denial of a new trial violated his due process rights, the magistrate judge concluded that petitioner was not entitled to federal habeas review based upon his claim of actual innocence because petitioner had failed to show an independent constitutional violation occurring in the underlying state criminal proceeding. Slip op. at 28-30 (citing Herrera v. Collins, — U.S.-,-, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (Herrera) (“[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding”)). The magistrate judge thus recommended that the .petition be denied. The district court adopted the magistrate judge’s report and recommendation and denied the petition. This appeal followed. Upon careful review of the record in the present case,' we agree with the district court’s conclusion that petitioner has not established a violation of his constitutional rights or his Miranda rights; nor has he established grounds for review of his actual innocence claim. ‘ We note, however, with respect to petitioner’s claim of actual innocence based on newly discovered" }, { "docid": "20529786", "title": "", "text": "she used to describe the abuse during interviews about the abuse. That the jury nevertheless voted to convict Jones of unlawful sexual penetration suggests that it did not rely on S.J.’s knowledge of her sexual anatomy in concluding that Jones penetrated S.J. with his finger. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir.1997) (“That the jury nevertheless voted to convict [despite its knowledge that the victim had an intact hymen] suggests that they did not believe an intact hymen disproved [the defendant’s] guilt.”). This circumstance therefore undermines the inference that no reasonable juror would have convicted Jones in light of the purportedly new evidence about S.J.’s limited anatomical knowledge at the time of trial. See id. (discounting the relevance of facts of which the jury was aware,in establishing actual innocence). Finally, a reasonable juror would not be required to rely exclusively on S.J.’s assessment of whether Jones penetrated her vagina in determining his guilt. A reasonable juror could conclude that Jones penetrated S.J. based on S.J.’s description of Jones’ actions and her sensations of them, regardless of whether she describes the abuse as penetration. In her interviews and trial testimony, S.J. said that it hurt when Jones touched her genitals and that Jones “wiggled” his finger and moved it “back and forth.” A reasonable juror could conclude that this description is consistent with penetration, even if S.J. did not know at the time what it meant to be penetrated. The most that can be said of the new testimony is that it undercuts the evidence presented at trial. Evidence that merely undercuts trial testimony or casts doubt on the petitioner’s guilt, but does not affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of actual innocence. See House 547 U.S. at 555, 126 S.Ct. 2064 (rejecting freestanding actual innocence claim even though the petitioner had “cast considerable doubt on his guilt”); Jackson, 211 F.3d at 1165 (rejecting a freestanding actual innocence claim even though the petitioner’s new evidence “certainly cast doubt on his conviction”); Carriger, 132 F.3d at 477 (rejecting a freestanding claim when the" }, { "docid": "19961927", "title": "", "text": "factual predicates for his claims of newly discovered evidence. He suggests only a general time frame, the autumn of 2004, as the date when he discovered new evidence of his innocence and evidence which the prosecution allegedly suppressed in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because he filed his federal habeas petition in December 2004, Melson claims that he filed this petition within the one-year statute of limitations pursuant to § 2244(d)(1)(D). The limitations period under § 2244(d)(1)(D) begins when the factual predicate of a claim could have been discovered using due diligence, not when it was actually discovered. See § 2244(d)(1)(D); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004). Although we have not defined due diligence with respect to a § 2244(d)(1)(D) claim, we have addressed it in the analogous context of a second federal habeas petition which is based on newly discovered facts. See In re Boshears, 110 F.3d 1538, 1540 (11th Cir.1997) (per curiam). In the latter context, a petitioner must show that “ ‘the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.’ ” Id. (quoting 28 U.S.C. § 2244(b)(2)(B)(I)). Due diligence means the petitioner “must show some good reason why he or she was unable to discover the facts” at an earlier date. Id. Merely alleging that an applicant “did not actually know the facts underlying his or her claim does not pass the test.” Id. Instead, the inquiry focuses on “whether a reasonable investigation ... would have uncovered the facts the applicant alleges are ‘newly discovered.’ ” Id. (citation omitted). The district court did not determine if Melson could have known of the factual predicates for his claims earlier through due diligence because it did not decide whether his federal petition was timely under § 2244(d)(1)(D). Rather, the court concluded that even if the petition were timely or subject to equitable tolling, Mel-son’s claims would still be procedurally defaulted because he failed to raise them in a state habeas proceeding. We need not reach this issue" }, { "docid": "14314452", "title": "", "text": "on to state that “the habeas court’s analysis is not limited to such [new reliable] evidence,” that statement appears intend ed to clarify that, in determining whether such new evidence would likely have led the jury to acquit the petitioner, the habe-as court should consider “all the evidence, old and new, incriminating and exculpatory....” Id. (internal quotation marks omitted). Relatedly, Cummings contends that, “[wjithout the illegal testimony of [his] wives, there is simply no evidence whatsoever to support a guilty verdict and he is indeed innocent.” Aplt. Br. at 27. Cummings appears to misunderstand the requirements imposed by the Supreme Court in Schlup for establishing actual innocence. Nowhere in Schlup did the Supreme Court indicate that it was sufficient for a petitioner to simply attack the evidence actually presented at his trial and claim that, absent the admission of such evidence, there was not enough evidence to convict him. Rather, the Supreme Court, as outlined above, expressly held that a petitioner must come forward with new evidence, the admission of which would have made it more likely than not that he would have been acquitted. Cummings has failed to come forward with any such evidence, and thus cannot establish his claim of actual innocence. b) Cummings’ remaining claims of ineffective assistance of trial counsel The remaining three claims of ineffective assistance of trial counsel were raised by Cummings for the first time in his application for state post-conviction relief. The OCCA concluded that all three of those claims were procedurally barred. More specifically, the OCCA concluded that because these claims “d[id] not turn on facts unavailable at the time of [Cummings’] direct appeal, he ... failed to meet the pre-conditions for review of his claim on the merits and therefore review of the claim [wa]s barred.” Cummings II, 970 P.2d at 190. Generally speaking, we do not “address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Anderson, 476 F.3d at 1140. We have, however, “expressed concern regarding application" }, { "docid": "23212740", "title": "", "text": "Paroles, 913 S.W.2d 745, 749 (Tex.App.—Austin, 1996, writ dism’d w.o.j.), Texas courts have held that in order to overcome the Article 11.071 § 5(a)(1) bar, an applicant must “allege sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently serious as to likely require relief from his conviction or sentence.” Ex Parte Campbell, 226 S.W.3d at 422 (emphasis added). Because the United States Supreme Court has yet to recognize a freestanding claim of actual innocence, we find that Williams has not demonstrated that a Texas court would hear the merits of his third application for post-conviction relief on the grounds of unavailability of the factual basis of his claim. See House, 547 U.S. at 554-55, 126 S.Ct. 2064 (declining the opportunity to recognize a freestanding innocence claim). Additionally, Williams cannot demonstrate that a Texas court would reach the merits of his actual innocence claim based on either of the other two grounds enumerated in Article 11.071 § 5(a). As discussed at greater length below in the context of the federal miscarriage of justice standard, Williams’s new evidence does not persuade us that “but for a violation of the United States Constitution no rational juror could have found [him] guilty beyond a reasonable doubt.” Id. § 5(a)(2). ii. Actual Innocence of Blando’s Murder as Cause for Excusing Procedural Default Williams argues that because new evidence tending to exonerate him from Blando’s murder has come to light, the district court should review his procedurally defaulted IAC at sentencing claim. “Federal habeas review of procedurally defaulted claims is barred ‘unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.’ ” Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir.2008) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The “miscarriage of justice” exception applies where a petitioner is “actually innocent” of either the offense giving rise to his conviction or “actually innocent” of the death penalty. See" }, { "docid": "10285549", "title": "", "text": "D. Ex Post Facto Claim Bowman also alleges that the application of section 491.074 against him consti tuted an ex post facto violation. Bowman raised this claim in his initial habeas petition. The district court denied the claim, finding that it was procedurally defaulted. On appeal, Bowman does not allege any newly discovered evidence relating to this claim. Instead of raising the ex post facto claim in his direct appeal, Bowman challenged the constitutionality of section 491.074 on Confrontation Clause grounds. See Bowman, 741 S.W.2d at 12-13. His failure to properly present this claim in state court constitutes a procedural default. Because the claim has been procedurally defaulted, Bowman must establish cause for the default and show that he was prejudiced by the alleged violation of his constitutional rights. See Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir.1995). Bowman has failed to advance any cause in this appeal for his procedural default. Thus, we need not examine whether he was prejudiced. Because this claim has been procedurally defaulted, we decline to address it. E. Actual Innocence Despite Bowman’s failure to show cause for his default, we can reach the merits of his claims if he can show that he is probably actually innocent. Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996). Under Schlup v. Delo, - U.S. -, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), a petitioner who raises a gateway claim of actual innocence must satisfy a two-part test. First, the petitioner’s allegations of constitutional error must be supported “with new rehable evidence ... that was not presented at trial.” Id. at -, 115 S.Ct. at 865. Second, the petitioner must establish “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at -, 115 S.Ct. at 867. See also Wyldes, 69 F.3d at 254. The actual innocence exception requires “review of procedurally barred, abusive, or successive claims only in the narrowest type of case-when a fundamental miscarriage of justice would otherwise" }, { "docid": "19961937", "title": "", "text": "States Constitution. See Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1215 (11th Cir.2000). Neither the Supreme Court nor this Court has ever held that the Constitution requires an actual innocence exception to the AEDPA’s one-year limitations period. See Johnson v. Florida Dep’t of Corr., 513 F.3d 1328, 1333 (11th Cir.2008) (“To date, this Court has avoided this constitutional issue because no time-barred petitioner has made the requisite actual-innocence showing.”). Before reaching this question, the petitioner must first make a sufficient showing of actual innocence. Id. This requires the petitioner to produce “ ‘new reliable evidence' — -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.’ ” Arthur, 452 F.3d at 1245 (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865). If the petitioner shows “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” then he has made a “gateway” claim of innocence allowing his otherwise barred constitutional claims to be considered on the merits. Schlup, 513 U.S. at 315, 327, 115 S.Ct. at 861, 867. In evaluating this new evidence, a habe-as court “may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” House, 547 U.S. at 537, 126 S.Ct. at 2077 (quotation marks and citation omitted). The court then assesses the likely impact of this new evidence on reasonable jurors. Id. at 538, 126 S.Ct. at 2077. The demanding nature of the Schlup standard ensures that only the “extraordinary” case will merit review of the procedurally barred claims. Id. Melson proffers the following evidence of his innocence: (1) two statements made by his co-defendant Peraita in 2001 and 2002 that Melson was not his accomplice; (2) Melissa King’s 2005 affidavit recanting her trial testimony that Melson asked her to provide a false alibi; (3) a 2005 affidavit by Sara Romano, a private investigator, recounting Bryant Archer’s alleged statements that the robbers entered Popeye’s at 11:30 P.M. and that the black" }, { "docid": "16601325", "title": "", "text": "Nos. C-940375, C-940835, at NO-ll. The court also denied Carter’s claims on the merits, concluding “that the purported ‘newly discovered evidence’ was merely cumulative of evidence presented previously and that it did not undermine the jury’s conclusion that Carter killed Allen with prior calculation and design.” Id. at *11. The district court found the claim procedurally defaulted and held an eviden-tiary hearing on the matter to determine whether Carter had established actual innocence to excuse the procedural default. Following the evidentiary hearing, the district court found no reason to excuse the default and ultimately denied the claim. Generally, federal courts may not consider habeas claims not considered by the state courts due to procedural default. Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). This Circuit applies the familiar test of Maupin v. Smith to determine whether a claim is procedurally defaulted: (1) whether there is a procedural rule that the petitioner failed to follow;' (2) whether the state courts actually enforced the rule; (3) whether the procedural default is an “adequate and independent” ground on which the state can rely to foreclose review of a federal constitutional claim; and (4) whether the, petitioner has shown “cause” for his failure to follow the rule and “prejudice” resulting therefrom. 785 F.2d 135, 138 (6th Cir.1985). Even where a petitioner fails to show cause and prejudice, the court must still consider whether a miscarriage of justice would occur if the procedural default were enforced. “Specifically, a court may notice an otherwise defaulted claim if it concludes that petitioner has shown by clear and convincing evidence that but for constitutional error no reasonable juror would have found him guilty of the crime ....” Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir.2001). Citing its decision in State v. Zuem, the Ohio Court of Appeals held that Carter’s claim was barred under res judicata because it could and should have been raised in a motion for a new trial under Ohio Rule of Criminal Procedure 33(B), and not in a successive petition for post-conviction relief. Carter, Nos. C-940375, C-940835, at *15-16. Although the state" }, { "docid": "21706176", "title": "", "text": "exclusively on a showing that new evidence establishes his “actual innocence,” he may assert such an argument as a means of circumventing his procedural default on any other constitutional claim he presents to this Court. House v. Bell, 547 U.S. at 536-38, 126 S.Ct. 2064; Parr v. Quarterman, 472 F.3d at 252; Wright v. Quarterman, 470 F.3d at 590-92. Petitioner’s arguments about allegedly undiscovered exculpatory evidence and the poor quality of the police investigation into David Cook’s murder do not satisfy the constitutional “actual innocence” standard discussed in House v. Bell. As the Supreme Court emphasized, the threshold for a showing of “actual innocence” is “extraordinarily high.” House v. Bell, 547 U.S. at 553-55, 126 S.Ct. 2064. Petitioner’s speculative allegations about allegedly undiscovered or unexamined exculpatory evidence are insufficient to satisfy this standard. More than a decade has passed since David Cook’s murder. Despite that fact, and the availability since 2001 of procedures under Article 64 of the Texas Code of Criminal Procedure permitting post-conviction scientific examination of potentially exculpatory evidence, petitioner identifies no “newly discovered” exculpatory evidence. In order to satisfy the eviden-tiary standard set forth in House v. Bell, it was incumbent upon petitioner to present the state habeas court (or this Court) with some actual newly discovered evidence establishing “more likely than not any reasonable juror would have reasonable doubt.” Petitioner presented neither the state habeas court nor this Court with any such evidence. Petitioner’s arguments about potentially exculpatory evidence, premised on forensic testing never actually performed on any physical evidence, do not satisfy the standard set forth in Schlup v. Delo and House v. Bell. Likewise, petitioner’s attacks on the sufficiency of the evidence supporting his conviction do not satisfy the “actual innocence” standard. As another Judge of this Court has recently noted, Moore v. Quarterman, 526 F.Supp.2d 654, 681-82 (W.D.Tex.2007), the Supreme Court’s explanation of what it meant by the term “actual innocence” is perhaps more helpful to understanding how a federal habeas court must evaluate such a claim than the standard itself: The meaning of actual innocence as formulated by Sawyer, and Carrier does" }, { "docid": "17448995", "title": "", "text": "Jones would later hold, a narrow construction of § 844(i)'s interstate commerce element. . Davies additionally notes that, during briefing for his direct appeal, this Court decided United States v. McGuire, 178 F.3d 203 (3d Cir.1999). In McGuire, we questioned whether, after the Supreme Court's decision in Lopez, a de minimis connection to interstate commerce could suffice to bring an act within the reach of § 844(i). We did not decide whether some greater connection to interstate commerce would be necessary because, we noted, the only connection in that case-a container of orange juice that had traveled inter state-would not even meet that minimal standard. While McGuire foreshadows that post-Lopez a heightened connection to interstate commerce might be necessary under § 844(i), it does not adopt such a heightened standard and, consequently, does not alter the legal landscape on the basis of which reasonable counsel at the time of Davies's appeal would have pursued an appeal. . \"New\" evidence in this context does not necessarily mean \"newly discovered” evidence. Two circuit courts have concluded that Schlup allows a petitioner to offer \"newly presented” evidence (that is, evidence that was not presented to the trier of fact) and that a petitioner is not limited to offering only \"newly discovered\" evidence (that is, evidence discovered post-conviction). See Gomez v. Jaimet, 350 F.3d 673, 679-80 (7th Cir.2003); Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir.2003). We need not weigh in today on the \"newly presented” versus \"newly discovered” issues because, as we note below, we write in the context of a claim that a post-conviction Supreme Court decision has held that the statute of conviction does not reach the petitioner’s conduct. . Although we operate under the \"actual innocence” gateway whereby the Government may \"present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner's plea colloquy,” Bousley, 523 U.S. at 624, 118 S.Ct. 1604 (emphasis added), the Supreme Court has limited the Government to introducing only evidence proving that the petitioner is guilty of the crime charged in the indictment. In Bousley, the Government \"maintain[ed] that" }, { "docid": "22248462", "title": "", "text": "basis. See Lucidore, 209 F.3d at 113-14. Thus, we have instructed district courts faced with untimely petitions in which the petitioner asserts his or her actual innocence to determine, in each case, whether the petitioner has presented a credible claim of actual innocence before ruling on the legal issues of whether such a showing provides a basis for equitable tolling and whether the petitioner must also demonstrate that he or she pursued his or her claim with reasonable diligence. See Whitley, 317 F.3d at 225. Because the interests that must be balanced in creating an exception to the statute of limitations are identical to those implicated in the procedural default context, we see no reason not to apply the Schlup standard in the tolling context. Indeed, we have previously assumed that if actual innocence does provide a basis for tolling the limitations period, Schlup’s delineation of the evidentiary showing necessary to demonstrate actual innocence would apply in evaluating whether the petitioner had made a credible showing of actual innocence. See Lucidore, 209 F.3d at 114 (applying the Schlup standard and holding that petitioner had ■ not demonstrated actual innocence). The Schlup Court carefully limited the type of evidence on which an actual innocence claim may be based and crafted a demanding standard that petitioners must meet in order to take advantage of the gateway. The petitioner must support his claim “with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. Because Schlup explicitly states that the proffered evidence must be reliable, the habeas court must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the preexisting evidence in the record. See id. at 327-28, 115 S.Ct. 851. Once it has been determined that the new evidence is reliable, Schlwp unequivocally requires that reviewing courts consider a petitioner’s claim in light of the evidence in the record as a whole, including evidence that might have been" }, { "docid": "16601324", "title": "", "text": "error would have been harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Mitzel v. Tate, 267 F.3d 524, 534 (6th Cir.2001) (stating that Brecht harmless-error review applies under the AEDPA, “even when the ‘federal habeas court is the first to review for harmless error’ ” (quoting Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999))). B. Newly Discovered Evidence/Insufficient Evidence to Support Conviction Finally, Carter claims that he should receive a new trial because newly discovered evidence reveals that insufficient evidence exists to support his aggravated murder conviction. Carter bases this claim on the affidavits of two witnesses who testified for the prosecution at trial and on the affidavit of another inmate, Chris Isome, who did not testify at the trial. The witnesses’ affidavits recant their trial testimony, claiming they lied because of the deals the prosecution promised them. Isome’s affidavit states that Allen threatened revenge against Carter after their confrontation over the television. The Ohio Court of Appeals concluded that this claim was procedurally defaulted. Carter, Nos. C-940375, C-940835, at NO-ll. The court also denied Carter’s claims on the merits, concluding “that the purported ‘newly discovered evidence’ was merely cumulative of evidence presented previously and that it did not undermine the jury’s conclusion that Carter killed Allen with prior calculation and design.” Id. at *11. The district court found the claim procedurally defaulted and held an eviden-tiary hearing on the matter to determine whether Carter had established actual innocence to excuse the procedural default. Following the evidentiary hearing, the district court found no reason to excuse the default and ultimately denied the claim. Generally, federal courts may not consider habeas claims not considered by the state courts due to procedural default. Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). This Circuit applies the familiar test of Maupin v. Smith to determine whether a claim is procedurally defaulted: (1) whether there is a procedural rule that the petitioner failed to follow;' (2) whether the state courts actually enforced the rule; (3) whether the procedural default is an “adequate and independent” ground" }, { "docid": "12905490", "title": "", "text": "crime “probably caused” the petitioner’s death sentence. Malone, 138 F.3d at 720 (noting that this allegation was insufficient to establish either a “gateway” claim under Schlup, 513 U.S. at 317, 115 S.Ct. 851, or to meet “the more exacting standard for a substantive claim of actual innocence”). The evidence must not only be “new,” but “reliable,” so that “a petitioner must support his claim of innocence with reliable new evidence, whether exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial.” Amrine, 128 F.3d at 1228 (citing Schlup, 513 U.S. at 322-24, 115 S.Ct. 851). Courts from time to time reach the second requirement of an “actual innocence” claim, the impact-on-trial element, assuming, for the sake of argument, that the evidence is indeed “new.” See Lee, 213 F.3d at 1039; Johnson, 170 F.3d at 818. However, even if the evidence is, or is assumed to be, “new,” the petitioner must also show “with the required likelihood that reasonable jurors would not have convicted based on [that evidence].” Lee, 213 F.3d at 1039. In Lee, the court explained that the required likelihood is “that it is more likely than not” that no reasonable juror would have found the petitioner guilty. Id; see also Malone, 138 F.3d at 719 (to obtain review, the petitioner must show that the new evidence is “sufficiently likely to warrant consideration of his proeedurally defaulted claims”) (emphasis added). More specifically, “[i]n deciding whether a petitioner has made the necessary showing of innocence, a federal court must make its own determination of whether the ‘probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial’ is sufficient to warrant consideration of the otherwise barred claims.” Amrine, 128 F.3d at 1227 (quoting Schlup, 513 U.S. at 330-32,115 S.Ct. 851). An actual innocence inquiry is necessarily fact intensive and the district court may be the most appropriate forum to consider whether the new evidence is reliable and what “reasonable triers of fact are likely to do.” Schlup, [513 U.S.] at 330, 115 S.Ct. at 868. A petitioner can" }, { "docid": "11168961", "title": "", "text": "left, Gandarela appeared to be asleep. Valencia was not present during the time of the crime, and only learned of the accusation after Gandarela’s arrest. Valencia’s girlfriend, Teresa Steele, stated that she was concerned about the lack of adult supervision over the children. She claimed that the girls were exposed to drinking, adults partying, and men “hanging around” the house. She said that the girls could observe and hear adult sexual activity at these times. She confirmed that it was Christina, not A.V., who accused a tenant of touching her inappropriately while playing, after Gandarela’s ar rest. Steele acknowledged that she “did not see what happened on the date that [Gandarela] was alleged to have molested [A.V.].” The district court rejected Gandarela’s claim that the newly profered evidence so clearly demonstrated actual innocence that his procedural default should be excused and the court should address the merits of his Confrontation Clause claim. Also the court rejected Gandarela’s request for an evidentiary hearing, finding that petitioner failed to meet the prerequisites of 28 U.S.C. § 2254(e)(2). Gandarela appeals. Pursuant to 28 U.S.C. §§ 1291 and 2253, we have jurisdiction over Gandarela’s appeal. DISCUSSION I. The petition in this case was filed on July 20, 1998, and is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C.' § 2254. We review a state conviction only for errors of federal law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). We review a district court’s denial of a petition for writ of habeas corpus de novo. Fields v. Calderon, 125 F.3d 757, 759-760 (9th Cir.1997). We review factual findings relevant to the district court’s determination for clear error. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996). II. Gandarela concedes that his Confrontation Clause claims are barred from review through procedural default because the claims were not raised on direct appeal to the Oregon Court of Appeals or the Oregon Supreme Court. However, he urges that a federal habeas court nonetheless may review a procedurally defaulted claim if the court’s failure to hear" }, { "docid": "12905479", "title": "", "text": "have discovered the predicate facts on which the claims he actually asserted in his petition rely in time to file a timely petition for federal habeas relief. Fisher, 174 F.3d at 715 & .n. 14. Neuendorf has certainly contested the effectiveness of his trial counsel throughout his direct appeals and state post-conviction relief proceedings, just as he has challenged the sufficiency of the evidence of non-consensual sex in light of McKinney’s testimony. See Neuendorf, 509 N.W.2d at 747-48. As the Fifth Circuit Court of Appeals explained, § 2244(d)(1)(D) does not “convey a statutory right to an extended delay ... while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim.” Flanagan, 154 F.3d at 199. Moreover, since Neuen-dorf neither identifies the form of his “new evidence” or when and how it was discovered, his contentions that it was only just discovered and could not have been discovered sooner with due diligence are, again, unsupported and conclusory. Therefore, § 2244(d)(1)(D) does not provide the applicable limitation period in this case, c. Does “actual innocence” avoid § 2244(d)(1) time limitations? Thus, the timeliness of the present action depends on whether “actual innocence” avoids the time limitations imposed by Congress in § 2244(d)(1) and, of course, the further question of whether Neuen-dorfs “new evidence” is sufficient to open such a gateway around the time limitations. The Eighth Circuit Court of Appeals has not expressly ruled on the first of these questions. However, the Eighth Circuit Court of Appeals has repeatedly recognized that “actual innocence” can, at least theoretically, overcome other procedural defaults, allowing review in habeas actions. See Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir.1999) (“[Procedural default may be excused and the petition reviewed if a petitioner can prove ... that a constitutional error led to his or her conviction despite his or her actual innocence.”); accord Lee v. Kemna, 213 F.3d 1037, 1038 (8th Cir.2000); Mansfield v. Dormire, 202 F.3d 1018, 1024 (8th Cir.2000); Johnson v. Norris, 170 F.3d 816, 817 (8th Cir.1999). The reasonable conclusion from these decisions is that “actual innocence”" }, { "docid": "14814216", "title": "", "text": "been introduced at trial it would have caused a different result in the conviction or sentence”). The Mississippi Supreme Court held Petitioner’s claim barred and otherwise without merit. Wiley III, 842 So.2d at 1286. The court noted that the affidavits attached to the petition failed to reveal any information that was not presented through the testimony of witnesses who testified at Petitioner’s resentencing trial. Id. The court held that Petitioner failed to show counsel was deficient or that prejudice resulted from counsel’s failure to call these witnesses, and that the issue was otherwise without merit. Id. The court also addressed Petitioner’s claim that Jackson represented an “intervening decision” that would vitiate the procedural bar, and it determined Petitioner “had more than one opportunity to present an argument under Jackson ” and failed to do so. Id. Moreover, the evidence presented to the court was not found to be new evidence undiscoverable at the time of trial or sufficient to allow a different result if it had been introduced. Id. Petitioner fails to persuade the Court that he is entitled to have this claim reviewed, as it is barred on independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 750, 111 S.Ct. 2546; see also Moore v. Roberts, 83 F.3d 699, 703 (5th Cir.1996) (no evidence Mississippi inconsistently applies time bar); Sones v. Hargett, 61 F.3d 410, 417 (5th Cir.1995) (Mississippi time bar adequate and independent state law ground); Johnson v. Puckett, 176 F.3d 809, 815 n. 3 (5th Cir.1999). In order to overcome the imposition of the procedural bar, Petitioner must demonstrate cause and prejudice, which he fails to do. Petitioner cannot argue the ineffectiveness of post-conviction counsel to demonstrate “cause,” as there is no right to counsel on state post-conviction review. See Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.2002) (no “cause” where there is no right to counsel); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.2001). Similarly, Petitioner’s argument regarding Jackson fails to provide him with relief, as he has not persuaded that it was an “intervening decision” or that his claim is" } ]

[ { "docid": "18641342", "title": "", "text": "entire analysis turn upon the presence of a requirement of postpetition services. Under these cases, if there is such a requirement, all of the renewal commissions will be excluded from the estate. If there is not such a requirement, then all renewal commissions will be included in the estate. . This all or nothing approach is inconsistent with FitzSimmons and Ryerson, which, in evaluating earnings having both a prepetition and a postpetition component, caution us to determine the extent to which the earnings are attributable to prepetition property or prepetition services. The proper analysis under Ryerson and FitzSimmons is to first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments are entirely “rooted in the pre-bankruptcy past”, Ryerson, 739 F.2d at 1426, and the payments will be included in the estate. If some post-petition services are necessary, then courts must determine the extent to which the payments are attributable to the postpetition services and the extent to which the payments are attributable to prepetition services. That portion of the payments alloca-ble to postpetition services will not be property of the estate. That portion of the payments allocable to prepetition services or property will be property of the estate. In this case, the bankruptcy court essentially followed this analysis. It determined that because the contract required that the debtor remain employed and provide a fixed amount of new business in order to receive renewal commissions, the case is similar to Kervin, supra, in that postpetition services are required. The court then determined that, although it is difficult to allocate the renewal commissions to prepetition or post-petition efforts, the manner in which the contracts in question provide for most of the commission to be paid in the initial year of the policy and a much smaller percentage to be paid in subsequent years reflects an allocation of the renewal commissions to the postpetition services required to generate renewals. The bankruptcy court determined, therefore, that judgment for the debtor would be consistent with Ryerson. The bankruptcy court is correct that the contract required the debtor" } ]

[ { "docid": "18533099", "title": "", "text": "services performed post-petition, has earned (not generated) some portion of the proceeds, profits, rents, etc., of or from the estate’s property, then that portion will not be included as property of the estate.”). 4. The Fifth and Ninth Circuits Although debtors’ rights under executory personal-service contracts were not property of the estate under the former Bankruptcy Act, such rights became property of the estate under Code section 541(a)(1), notwithstanding that the underlying contracts could not be assumed or assigned by the trustee under section 365. 4 Lawrence P. King, Collier on Bankruptcy ¶541.09[3] (15th ed. 1995). In Turner v. Avery (In re Avery), 947 F.2d 772 (5th Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992), the Fifth Circuit held that fees paid postpetition pursuant to prepetition, attorney contingent-fee contracts are property of the estate to the extent attributable to prepetition services. Id. at 774. The court concluded that the contingent-fee contracts had value on the date the bankruptcy case was commenced. “The value is determinable on a quantum meruit basis by measuring the value and worth of the legal services performed both before and after the bankruptcy filing.” Id. See also Watts v. Williams (In re Watts), 154 B.R. 56, 58-59 (SD.Tex.1993) (holding bankruptcy estate’s interest in debtor/attorney’s prepetition contingent-fee contract is property of estate and applicable state law applies only to determination of amount belonging to estate). In Rau v. Ryerson (In re Ryerson), 739 F.2d 1423 (9th Cir.1984), the Chapter 7 trustee sought to include as property of the estate the debtor’s contingent contract right to a postpetition employment-termination payment. Pursuant to the employment contract, the debtor would be entitled to an additional payment upon termination or cancellation of his employment contract. Being in good standing with his employer upon the termination or cancellation of the employment contract was a condition precedent to receipt of the termination payment. The debtor filed for Chapter 7 relief and his employment contract was terminated thereafter. The debtor in Ryerson contended that since his employment had not been terminated on the date of bankruptcy, his right to" }, { "docid": "16641681", "title": "", "text": "that right were property of the estate, even though paid postpetition. The court indicated that the test of whether such postpetition payments were property of the estate is whether such payments are “sufficiently rooted in the pre-bankruptcy past” and concluded the termination payments “representing value for years of service completed prior to bankruptcy, and not being an arbitrary amount arising after bankruptcy,” are property of the estate. Id. at 1426. Similarly, in In re Wu, the Panel, relying on Ryerson, determined that postpetition renewal commissions for policies the debtor, an insurance agent, sold prepetition were alloca-ble between the prepetition and postpetition services of the debtor. Wu, 178 B.R. at 413-16. The Panel rejected an approach focusing solely on whether the commissions were “dependent upon the performance of postpetition services.” Id. at 414. According to the opinion: This all or nothing approach is inconsistent with FitzSimmons and Ryerson, which, in evaluating earnings having both a prepetition and a postpetition component, caution us to determine the extent to which the earnings are attributable to pre-petition property or prepetition services. The proper analysis under Ryerson and FitzSimmons is to first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments, are entirely “rooted in the pre-bankruptcy past” and the payments will be included in the estate. If some postpetition services are necessary, then courts must determine the extent to which the payments are attributable to the post-petition services and the extent to which the payments are attributable to prepetition services. That portion of the payments allocable to postpetition services will not be property of the estate. That portion of the payments allocable to prepetition services or property will be property of the estate. Id. at 414^15 (citations omitted). Three possible factual situations exist when payment for services is received after filing a petition in bankruptcy. First, the funds in issue are totally prepetition earnings for personal services in which case they are property of the estate. Second, the funds are totally postpetition earnings for personal services in which case they are not property of the estate;" }, { "docid": "18641338", "title": "", "text": "of what constitutes property of the estate. Section 541(a)(6) provides that the bankruptcy estate includes the “[pjroceeds, product, offspring, rents, and or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case.” This ease requires us to determine whether the postpetition renewal commissions are included within the scope of the postpetition earnings exception contained in section 541(a)(6). While the Ninth Circuit has not addressed the question of postpetition renewal commissions, it has addressed section 541(a)(6) in situations involving postpetition earnings that arise, at least in part, out of prepetition services or prepetition property. In In re FitzSimmons, 725 F.2d 1208 (9th Cir.1984), the court determined that while the earnings exception of section 541(a)(6) applied in the Chapter 11 case of a debtor engaged in a law practice as a sole proprietor, it did not remove all of the postpetition earnings of the law practice from the estate. The court held that the earnings exception applies only to the those earnings generated by services personally performed by the individual debtor postpetition. 725 F.2d at 1211. To the extent postpetition earnings are not attributable to such personal services but to the business’ invested capital, accounts receivable, goodwill, employment contracts with the firm’s staff, client relationships, fee agreements, or the like, the earnings are property of the estate. Id. In In re Ryerson, 739 F.2d 1423 (9th Cir.1984), Ryerson and Farmers Insurance Company entered into an agreement which appointed Ryerson to a district manager position and which provided that in the event of cancellation or termination of the appointment, Farmers would pay “contract value” to Ryerson. Ryerson was ultimately terminated several months after he filed a Chapter 7 petition and he sought a declaratory judgment that the $18,588 in “contract value” was not property of the estate. The court rejected the contention that the estate had no interest in the “contract value” because Ryerson had not yet been terminated at the time he filed bankruptcy and his right to contract value was therefore unvested and contingent. 739" }, { "docid": "16641685", "title": "", "text": "included in the estate.” Wu, 173 B.R. at 414. If postpetition services are necessarily performed, then the court must determine “the extent to which the payments are attributable to the postpetition services and the extent to which the payments are attributable to prepetition services”. Id. at 414. Under both Ryerson and Wu the fact that postpetition services are necessarily performed does not cause the right to payment for prepetition services to be excluded from the estate. Jess performed additional postpetition services necessary to obtain the contingent fee; thus we go to the next step of the analysis according to Wu. In this case, both parties stipulated to the valuation of the prepetition services as determined by the bankruptcy court below. Therefore, the stipulated value of the prepetition services performed are included in the property of the estate. In this appeal, Jess, who does not cite Wu, principally relies on language from In re Tully, 202 B.R. 481, 483 (9th Cir. BAP 1996) (quoting In re Sloan, 32 B.R. 607, 611 (Bankr.E.D.N.Y.1983)): “Where a debtor derives post-petition commissions under a pre-petition contract, and such commissions are dependent upon the continued services of the debtor, they do not constitute property of the estate.” Jess argues his right to receive any compensation was dependent upon postpetition services and thus all of the contingent fee earned was postpetition and excluded from the estate. In Tully, a real estate broker sold property prior to filing a petition for relief in bankruptcy but was not paid until a closing of the escrow account postpetition. The broker argued that because he performed postpetition services (such as arranging financing for the purchaser), the commission was dependent on postpetition services and therefore not property of the estate. The Panel rejected this argument, stating that “[a]t the time of his petition, there was nothing left for [the debtor] to do.” Tully, 202 B.R. at 484. Although the Panel recognized the broker performed some postpetition services, it relied on the bankruptcy court’s factual findings that those services were not essential for the broker to be compensated. The postpetition services provided were" }, { "docid": "16641686", "title": "", "text": "post-petition commissions under a pre-petition contract, and such commissions are dependent upon the continued services of the debtor, they do not constitute property of the estate.” Jess argues his right to receive any compensation was dependent upon postpetition services and thus all of the contingent fee earned was postpetition and excluded from the estate. In Tully, a real estate broker sold property prior to filing a petition for relief in bankruptcy but was not paid until a closing of the escrow account postpetition. The broker argued that because he performed postpetition services (such as arranging financing for the purchaser), the commission was dependent on postpetition services and therefore not property of the estate. The Panel rejected this argument, stating that “[a]t the time of his petition, there was nothing left for [the debtor] to do.” Tully, 202 B.R. at 484. Although the Panel recognized the broker performed some postpetition services, it relied on the bankruptcy court’s factual findings that those services were not essential for the broker to be compensated. The postpetition services provided were a courtesy to the buyer to facilitate consummation of the deal, but were not necessary for payment. The buyer was responsible for finding financing himself as the broker was not contractually obligated to do so by either the sales contract or the commission authorization agreement. The Panel found the “bankruptcy court properly determined the commission to be a pre-petition asset of the estate.” Id. at 485. Therefore, Tully is a first scenario ease where earnings paid postpetition were for prepetition services. The language quoted in Tully from Sloan refers to the provisions of section 541(a)(6) exempting “earnings from services performed by an individual debtor after the commencement of the ease.” This provision does not apply to earnings received postpeti tion for services performed prepetition. The Tully Panel determined that funds received postpetition were property of the estate because the debtor had fulfilled his obligations prepetition. Thus, any indication that the result would have been different if some portion of the work had been completed postpetition is dicta and is not applicable to the third factual" }, { "docid": "14093344", "title": "", "text": "contingent fee earned pre-petition was property of the estate because a contract on a case subsequently settled or successfully litigated has value on the date of a bankruptcy filing. Id. at 774. The court stated: Very frequently, as a consequence of the dismissal or withdrawal of counsel, or the death or divorce of a married attorney ... or the voluntary or involuntary dissolution of a partnership, it becomes necessary to place a value on services rendered under a contingent fee contract as of a certain target date. This assessment has proven to be “doable” both factually and legally. Perhaps the most typical example of a quantum meruit division of attorney’s fees results from the situation where one attorney begins representation which is completed by a second attorney. Fair and equitable divisions routinely are reached. Id. (citations omitted). We agree with the Fifth Circuit’s analysis. The bankruptcy court and the BAP applied the proper analysis in concluding that Jess earned a portion of his contingent fee pre-petition. In this circuit, a court must first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments are entirely “rooted in the pre-bankruptcy past,” and the payments will be included in the estate. If some postpetition services are necessary, then courts must determine the extent to which the payments are attributable to the postpetition services and the extent to which the payments are attributable to prepetition services. That portion of the payments allocable to post-petition services will not be property of the estate. In re Wu, 173 B.R. at 414-15 (quoting Ryerson, 739 F.2d at 1426). Jess conceded, and the Trustee stipulated, that 78% of Jess’s work on the Klouds-Pacey litigation was performed pre-petition. The bankruptcy court allocated the contingent fee on that basis-78% is the estate and 22% percent to Jess. The court did not err in so doing. B. The Bankruptcy Court’s Findings Jess contends the bankruptcy court’s findings are insufficient, and we should remand for additional findings. Bankruptcy Rule 7052, which incorporates Rule 52 of the Federal Rules of Civil Procedure, requires the bankruptcy" }, { "docid": "14093345", "title": "", "text": "any postpetition services are necessary to obtaining the payments at issue. If not, the payments are entirely “rooted in the pre-bankruptcy past,” and the payments will be included in the estate. If some postpetition services are necessary, then courts must determine the extent to which the payments are attributable to the postpetition services and the extent to which the payments are attributable to prepetition services. That portion of the payments allocable to post-petition services will not be property of the estate. In re Wu, 173 B.R. at 414-15 (quoting Ryerson, 739 F.2d at 1426). Jess conceded, and the Trustee stipulated, that 78% of Jess’s work on the Klouds-Pacey litigation was performed pre-petition. The bankruptcy court allocated the contingent fee on that basis-78% is the estate and 22% percent to Jess. The court did not err in so doing. B. The Bankruptcy Court’s Findings Jess contends the bankruptcy court’s findings are insufficient, and we should remand for additional findings. Bankruptcy Rule 7052, which incorporates Rule 52 of the Federal Rules of Civil Procedure, requires the bankruptcy court to make findings of fact and conclusions of law in all actions tried upon facts without a jury. See, e.g., Swanson v. Levy, 509 F.2d 859, 861 (9th Cir.1975). This is such a case. The bankruptcy court’s findings, to the extent they exist at all, are sparse. The BAP held that the bankruptcy court fulfilled its obligation under Bankruptcy Rule 7052 by adopting the findings proposed by the Trust ee. Although that might be a permissible way for a trial court to make findings, see Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1140 (9th Cir.1998), we have frequently criticized a trial court’s wholesale adoption of a party’s proposed findings. See, e.g., United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). In any event, we need not remand this case for further findings. At several points during the proceeding, the bankruptcy judge explicitly stated that no factual disputes existed in the case. Jess conceded that there were no contested facts, and that on a time basis, 78% of" }, { "docid": "13817047", "title": "", "text": "(9th Cir.1984), see also, In re Wu, 173 B.R. 411, 416 (9th Cir. BAP 1994) (“Whether and to what extent [insurance policy] renewal commissions are excluded from the estate depends upon whether the debt- or’s postpetition services are a prerequisite to the right to the renewal commissions and, if so, the extent to which the commissions are attributable to prepetition services”). A realtor’s commission, payable three weeks post-petition but resulting from a sale originating five years earlier, was property of the estate. In re Tully, 202 B.R. 481, 484-85 (9th Cir. BAP 1996). The right to receive post-petition payments for prepetition services performed under attorneys’ contingent fee contracts becomes property of the estate. Carlson v. Brandt, 1997 WL 534500 at * 2 (N.D.Ill.1997); Turner v. Avery, 947 F.2d 772, 774 (5th Cir.1991); In re Jess, 215 B.R. 618, 622 (9th Cir. BAP 1997); In re Bagen, 201 B.R. 642, 643-44 (S.D.N.Y.1996); In re Paul Nelson, P.A., 203 B.R. 756, 761 (Bankr. M.D.Fla.1996). Several opinions discussed below have also considered whether stock options are bankruptcy estate property or interests in property. While those decisions did not deal with precisely the same circumstances present here, the facts and reasoning of their rulings strongly support a finding here that Debtor held a property interest in all of his option rights when he filed in bankruptcy, even though none had been exercised and many were not exercisable until later. In In re Larson, the debtor received options to 10,000 shares in lieu of compensation for his services on the company’s board of director's during the fiscal year ending June 30, 1991. 147 B.R. 39, 40 (Bankr.D.N.D. 1992). He received the grant on July 16, 1990 and the options were exercisable upon issue, subject only to a five-year expiration date. He filed for relief in bankruptcy on October 16, 1990. The trustee assumed the stock options as an executory contract under § 365 of the Code, and the debtor filed an adversary complaint arguing that the options were post-petition wages for his services as a director. The Court held, given language of the grant, that" }, { "docid": "13817046", "title": "", "text": "re Neuton, 922 F.2d 1379, 1382-83 (holding that debtor’s right to receive a share of income from a trust upon his mother’s death and a share of the corpus when the trust terminated was a beneficial interest that became property of the bankruptcy estate to the extent it was unprotected by a spendthrift clause); and In re Smith, 189 B.R. 8, 10-11 (N.D.Ill.1995) (deciding that the debtor’s unvested, contingent interest in a revocable trust was an equitable interest in property). Post-petition payments owing to debtor under terms of a pre-petition non-competition agreement were sufficiently rooted in the pre-bankruptcy past to constitute property of the estate, even though the debtor was under a continuing obligation to forbear from competition in order to receive them. In re Andrews, 153 B.R. 159, 164 (Bankr.E.D.Va.1993). Where a debtor-employee’s employment terminated seven months post-petition, and where that termination entitled him to post-petition payments from the employer, such payments were property of the estate “to the extent the payments are related to pre-bank-ruptcy services.” In re Ryerson, 739 F.2d 1423, 1425 (9th Cir.1984), see also, In re Wu, 173 B.R. 411, 416 (9th Cir. BAP 1994) (“Whether and to what extent [insurance policy] renewal commissions are excluded from the estate depends upon whether the debt- or’s postpetition services are a prerequisite to the right to the renewal commissions and, if so, the extent to which the commissions are attributable to prepetition services”). A realtor’s commission, payable three weeks post-petition but resulting from a sale originating five years earlier, was property of the estate. In re Tully, 202 B.R. 481, 484-85 (9th Cir. BAP 1996). The right to receive post-petition payments for prepetition services performed under attorneys’ contingent fee contracts becomes property of the estate. Carlson v. Brandt, 1997 WL 534500 at * 2 (N.D.Ill.1997); Turner v. Avery, 947 F.2d 772, 774 (5th Cir.1991); In re Jess, 215 B.R. 618, 622 (9th Cir. BAP 1997); In re Bagen, 201 B.R. 642, 643-44 (S.D.N.Y.1996); In re Paul Nelson, P.A., 203 B.R. 756, 761 (Bankr. M.D.Fla.1996). Several opinions discussed below have also considered whether stock options are bankruptcy estate" }, { "docid": "16641676", "title": "", "text": "OPINION HAGAN, Bankruptcy Judge. The Chapter 7 Trustee sought turnover of a portion of a contingency fee payment attributable to prepetition work performed by the Debtor, an attorney. The bankruptcy court granted the request and the Debtor appeals. We conclude that a portion of the fee earned prior to the Debtor’s filing is an asset of the chapter 7 estate and AFFIRM. BACKGROUND On June 23, 1994, Paul Clayton Jess (“Jess”) filed a petition for relief under chapter 11, in propria persona. Prior to the filing he entered into a contingent fee agreement in the “Klouds-Paeey litigation.” Following his filing, Jess continued to perform services in the litigation generating $130,000 worth of work prepetition and an additional $35,000 postpetition. In June 1995, Jess collected $156,000 in fees from the litigation. On December 4, 1995, the case was converted to a ease under chapter 7 and the Appellee (“Trustee”), Raymond Carey, was appointed trustee. In July 1996, the Trustee filed a complaint to determine the nature and extent of the property of the estate. He asserted in the complaint that a portion of the fees received by Jess from the Klouds-Paeey litigation was property of the estate. In his answer to the complaint Jess claimed the funds received constituted earnings from postpetition services and were, therefore, ex- eluded from the estate under section 541(a)(6). A trial to determine the nature and extent of the property of the estate was scheduled for January 15, 1997. At the trial Jess agreed, based upon his time charges, that 78% of the work was completed prior to the chapter 11 filing. He argued that pursuant to section 541(a)(6), no portion of the fees were property of the estate since he had no right to collect the funds on the date of the chapter 11 filing. He cited In re FitzSimmons, 725 F.2d 1208 (9th Cir.1984), for the proposition that postpetition earnings attributable to the debtor’s personal efforts are excluded from the bankruptcy estate. He further made an offer of proof that no money would have been realized from the contingency if he had ceased working" }, { "docid": "16641687", "title": "", "text": "a courtesy to the buyer to facilitate consummation of the deal, but were not necessary for payment. The buyer was responsible for finding financing himself as the broker was not contractually obligated to do so by either the sales contract or the commission authorization agreement. The Panel found the “bankruptcy court properly determined the commission to be a pre-petition asset of the estate.” Id. at 485. Therefore, Tully is a first scenario ease where earnings paid postpetition were for prepetition services. The language quoted in Tully from Sloan refers to the provisions of section 541(a)(6) exempting “earnings from services performed by an individual debtor after the commencement of the ease.” This provision does not apply to earnings received postpeti tion for services performed prepetition. The Tully Panel determined that funds received postpetition were property of the estate because the debtor had fulfilled his obligations prepetition. Thus, any indication that the result would have been different if some portion of the work had been completed postpetition is dicta and is not applicable to the third factual scenario where services are provided prepetition and postpetition although earnings are received postpetition. Jess further argues property of the estate is determined by state law and under California law he would not have been entitled to the contingent fee had he not performed the postpetition services. He contends he would have no right to maintain an action in quantum meruit at the time he filed his petition, thus the Trustee could not have collected the fee. This argument does not affect whether the prepetition earnings are property of the estate under section 541(a). While state law may ultimately determine whether an asset is property of the estate, in the final analysis section 541(a) supplies the basic definition. Jess clearly held an interest in the prepetition earnings despite the fact he may have not been able to sue for recovery of the earnings at the time he filed the chapter 11 petition. That interest is property of the estate pursuant to § 541(a)(1). In fact, Jess acknowledged that if he had been fired on his petition" }, { "docid": "18533098", "title": "", "text": "the term “property of the estate” broadly, Congress intended to encompass contingent future payments that were subject to a condition precedent on the date of bankruptcy. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 175-76 (1977); see also In re Newman, 88 B.R. 191, 192 (Bankr.C.D.Ill.1987) (“[A] contingency merely affects the value of the property interest; it does not prevent the property from becoming property of the estate.”). It is in keeping with the broader reach of section 541 of the Code to conclude that a prepetition contingent contract right to receive property in the future is property of the bankruptcy estate. See Rau v. Ryerson (In re Ryerson), 739 F.2d 1428, 1425 (9th Cir.1984); Quarles House Apartments v. Plunkett (In re Plunkett), 23 B.R. 392, 394 (Bankr.E.D.Wis.1982). Accordingly, those portions of Bagen’s contingent attorney’s fees which may be paid postpetition, but were nevertheless earned and rooted in his prepetition past, should be includable in his bankruptcy estate. Cf. In re Herberman, M.D., 122 B.R. 273, 278 (Bankr.W.D.Tex. 1990) (“[I]f an individual debtor, by his services performed post-petition, has earned (not generated) some portion of the proceeds, profits, rents, etc., of or from the estate’s property, then that portion will not be included as property of the estate.”). 4. The Fifth and Ninth Circuits Although debtors’ rights under executory personal-service contracts were not property of the estate under the former Bankruptcy Act, such rights became property of the estate under Code section 541(a)(1), notwithstanding that the underlying contracts could not be assumed or assigned by the trustee under section 365. 4 Lawrence P. King, Collier on Bankruptcy ¶541.09[3] (15th ed. 1995). In Turner v. Avery (In re Avery), 947 F.2d 772 (5th Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992), the Fifth Circuit held that fees paid postpetition pursuant to prepetition, attorney contingent-fee contracts are property of the estate to the extent attributable to prepetition services. Id. at 774. The court concluded that the contingent-fee contracts had value on the date the bankruptcy case was commenced. “The value is determinable on a quantum meruit basis" }, { "docid": "16641683", "title": "", "text": "and third, the funds fall partially into both prepetition and postpetition earnings in which case part of the earnings are property of the estate. The Jess case falls into the third category. Other courts have similarly found that attorney contingent fee contracts were property of the estate. In Turner v. Avery (In re Turner), 947 F.2d 772, 774 (5th Cir.1991), the Fifth Circuit Court of Appeals faced the precise issue before the Panel. The debtor/attorney had cases pending on a contingent fee basis when he filed a petition for relief under chapter 7 in the bankruptcy court. Although the trustee sought all of the contingent fees later collected from the pending cases, the appellate court determined that only the portion of contingent fees earned prior to filing were property of the estate. The value of those contingent fees for cases subsequently settled or successfully litigated is determined as of the date of filing. The court stated that based on premature valuation of contingent fees in other areas of law such a determination was “ ‘doable’ both factually and legally.” Id. In In re Bagen, 186 B.R. 824, 830 (Bankr.S.D.N.Y.1995), aff'd, 201 B.R. 642 (S.D.N.Y.1996), the court examined the broad reach of section 541 and determined that “[t]he fact that a debtor must continue to perform services after bankruptcy (as a condition prece dent to payment) does not preclude a finding that the bankruptcy estate has an interest in the contingent contract right to future payment.” Id. Thus, the bankruptcy court properly determined that some portion of Jess’s contingent fee agreements were included in property of the estate. Of the Ninth Circuit authority, In re Wu is most analogous to Jess’s situation. Although factually distinguishable, Wu’s allocation between prepetition and postpetition services applies here, as well. In addition, this approach is consistent with decisions from other jurisdictions. According to Wu, the proper analysis under Ryerson is for a court “to first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments are entirely ‘rooted in the pre-bankruptcy past’ ... and the payments will be" }, { "docid": "18533096", "title": "", "text": "not property of estate when bonus conditioned on future employment); Medor v. Lamb (In re Lamb), 47 B.R. 79, 82 (Bankr.D.Vt.1985) (debtor’s interest in prepetition contract in which postpetition payment subject to compliance with milk reduction formula not property of the estate); McCracken v. Seiner (In re Seiner) 18 B.R. 420 (Bankr.S.D.Fla.1982) (debtor’s interest in postpetition insurance sale commissions that are contingent on debtor’s continued employment not property of estate). In Boyle v. Stefurak (In re Sloan), 32 B.R. 607 (Bankr.E.D.N.Y.1983), the Chapter 7 trustee sought to include as property of the estate a finder’s fee received by the debtor postpetition. The court concluded that “[t]he decisive factor in determining whether post-petition income of the debtor will be deemed property of the estate is whether that income accrues from post-petition services of the debtor.” Id. at 611. It noted that postpetition income will be property of the estate only when “all the acts of the debtor necessary to earn it are rooted in the pre-bank-ruptcy past.” Id. Thus, the court held that since the debtor was not required to perform additional services postpetition, the finder’s fee paid postpetition was property of the bankruptcy estate. Id. In concluding that the finder’s fee was property of the bankruptcy estate, the court distinguished In re Coleman: Not only was Coleman decided under more stringent standards of the former Bankruptcy Act, ... but it involved a situation in which the bankrupt continued to perform services under his contingency fee contract after his bankruptcy petition had been filed. Id. According to Sloan, the Trustee would be barred from recovering anything under Ba-gen’s prepetition contingent-fee contracts because of Bagen’s obligation to perform post-petition services under those contracts. I respectfully disagree with that analysis. A debtor’s continuing obligation to perform postpetition services (as a condition precedent to receiving postpetition property under a prepetition contract) should not prevent the debtor’s contingent contract right to future payment from becoming part of the bankruptcy estate. Although a right to payment may depend and be conditioned upon future performance, that right, nevertheless, may be property of the bankruptcy estate. By defining" }, { "docid": "18533102", "title": "", "text": "Circuit Court opinions provide persuasive analyses of when and why a debtor’s prepetition contingent contract right to postpetition property becomes property of the bankruptcy estate. CONCLUSION Bagen’s prepetition contingent contractual right to postpetition property is property of the estate pursuant to Code section 541(a)(1). Any postpetition payment made under the prepetition contingent-fee contracts is property of this estate to the extent earned prepetition. The estate’s interest in the future payment includes the entire sum paid less the amount attributable to services rendered postpetition. The fact that a debtor must continue to perform services after bankruptcy (as a condition precedent to payment) does not preclude a finding that the bankruptcy estate has an interest in the contingent contract right to future payment. (Valuation of this interest is not before me on this motion.) Accordingly, the Debtor’s Motion to Dismiss Trustee’s Complaint is denied. This proceeding is scheduled for pre-trial conference for October 10, 1995 at 3:00 P.M. It is SO ORDERED. . Subject matter jurisdiction over this proceeding exists pursuant to 28 U.S.C. §§ 1334(b), 157(a) and the “Standing Order of Referral of Cases to Bankruptcy Judges of the Southern District of New York” dated July 10, 1984 (Ward, Acting C.J.). This is a core proceeding under 28 U.S.C. § 157(b)(2)(E). . For a comprehensive discussion of this issue, see generally, George R. Pitts, Rights to Future Payment as Property of the Estate Under Section 541 of the Bankruptcy Code, 64 Am.Bankr.L.J. 61 (1990). . New York Judiciary Law § 475 provides: From the commencement of the an action ... in any court ..., the attorney who appears for a party has a lien upon his client's cause of action, claim or counter-claim, which attaches to a verdict, report, determination, decision, judgement, or final order in his client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgement, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien. N.Y.Jud.Law. § 475 (McKinney 1983) (current" }, { "docid": "16641682", "title": "", "text": "prepetition services. The proper analysis under Ryerson and FitzSimmons is to first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments, are entirely “rooted in the pre-bankruptcy past” and the payments will be included in the estate. If some postpetition services are necessary, then courts must determine the extent to which the payments are attributable to the post-petition services and the extent to which the payments are attributable to prepetition services. That portion of the payments allocable to postpetition services will not be property of the estate. That portion of the payments allocable to prepetition services or property will be property of the estate. Id. at 414^15 (citations omitted). Three possible factual situations exist when payment for services is received after filing a petition in bankruptcy. First, the funds in issue are totally prepetition earnings for personal services in which case they are property of the estate. Second, the funds are totally postpetition earnings for personal services in which case they are not property of the estate; and third, the funds fall partially into both prepetition and postpetition earnings in which case part of the earnings are property of the estate. The Jess case falls into the third category. Other courts have similarly found that attorney contingent fee contracts were property of the estate. In Turner v. Avery (In re Turner), 947 F.2d 772, 774 (5th Cir.1991), the Fifth Circuit Court of Appeals faced the precise issue before the Panel. The debtor/attorney had cases pending on a contingent fee basis when he filed a petition for relief under chapter 7 in the bankruptcy court. Although the trustee sought all of the contingent fees later collected from the pending cases, the appellate court determined that only the portion of contingent fees earned prior to filing were property of the estate. The value of those contingent fees for cases subsequently settled or successfully litigated is determined as of the date of filing. The court stated that based on premature valuation of contingent fees in other areas of law such a determination was “ ‘doable’" }, { "docid": "18533101", "title": "", "text": "the employment-termination payment was contingent and not property of the estate. Noting that the debtor’s contention may have been valid under the former Bankruptcy Act, the Ninth Circuit held that under the Code a debtor’s “right to ‘contract value’ is property of the estate.” Id. at 1425. It stated: By including all legal interests without exception, Congress indicated its intention to include all legally' recognizable interests although they may be contingent and not subject to possession until some future time. We therefore conclude that [the debtor’s] interest in the “contract value,” albeit contingent at the time of filing and not payable until such time as his appointment is terminated or cancelled, is includa-ble within the bankruptcy estate pursuant to section 541(a)(1). Id. (citations and footnote omitted). After concluding that the debtor’s right to “contract value” was property of the bankruptcy estate pursuant to section 541(a)(1), the court determined that any postpetition employment-termination payments were property of the estate “at least to the extent the payments are related to prebankruptcy services.” Id. The Ryerson and Avery Circuit Court opinions provide persuasive analyses of when and why a debtor’s prepetition contingent contract right to postpetition property becomes property of the bankruptcy estate. CONCLUSION Bagen’s prepetition contingent contractual right to postpetition property is property of the estate pursuant to Code section 541(a)(1). Any postpetition payment made under the prepetition contingent-fee contracts is property of this estate to the extent earned prepetition. The estate’s interest in the future payment includes the entire sum paid less the amount attributable to services rendered postpetition. The fact that a debtor must continue to perform services after bankruptcy (as a condition precedent to payment) does not preclude a finding that the bankruptcy estate has an interest in the contingent contract right to future payment. (Valuation of this interest is not before me on this motion.) Accordingly, the Debtor’s Motion to Dismiss Trustee’s Complaint is denied. This proceeding is scheduled for pre-trial conference for October 10, 1995 at 3:00 P.M. It is SO ORDERED. . Subject matter jurisdiction over this proceeding exists pursuant to 28 U.S.C. §§ 1334(b), 157(a)" }, { "docid": "18641339", "title": "", "text": "earnings generated by services personally performed by the individual debtor postpetition. 725 F.2d at 1211. To the extent postpetition earnings are not attributable to such personal services but to the business’ invested capital, accounts receivable, goodwill, employment contracts with the firm’s staff, client relationships, fee agreements, or the like, the earnings are property of the estate. Id. In In re Ryerson, 739 F.2d 1423 (9th Cir.1984), Ryerson and Farmers Insurance Company entered into an agreement which appointed Ryerson to a district manager position and which provided that in the event of cancellation or termination of the appointment, Farmers would pay “contract value” to Ryerson. Ryerson was ultimately terminated several months after he filed a Chapter 7 petition and he sought a declaratory judgment that the $18,588 in “contract value” was not property of the estate. The court rejected the contention that the estate had no interest in the “contract value” because Ryerson had not yet been terminated at the time he filed bankruptcy and his right to contract value was therefore unvested and contingent. 739 F.2d at 1425. Because Ryerson’s right to contract value was property of the estate, the court determined that any payments pursuant to that right were property of the estate, even though paid postpetition. The court indicated that the test of whether such postpetition payments are property of the estate is whether such payments are. “sufficiently rooted in the pre-bankruptcy past” and concluded that under that test, the termination payments “representing value for years of service competed prior to bankruptcy, and not being an arbitrary amount arising after bankruptcy,” are property of the estate. 739 F.2d at 1426. Several courts in other jurisdictions have specifically addressed whether postpetition renewal commissions are property of the estate. In order to determine this question, these courts have generally focused upon the rights and obligations of the debtor pursuant to the employment agreement and whether the receipt of the commissions was dependent upon the performance of postpetition services. See, In re Tomer, 128 B.R. 746, 762 (Bankr.S.D.Ill.1991), aff'd, 147 B.R. 461, 472-73 (S.D.Ill.1992); In re Bluman, 125 B.R. 359, 365-66" }, { "docid": "16641684", "title": "", "text": "both factually and legally.” Id. In In re Bagen, 186 B.R. 824, 830 (Bankr.S.D.N.Y.1995), aff'd, 201 B.R. 642 (S.D.N.Y.1996), the court examined the broad reach of section 541 and determined that “[t]he fact that a debtor must continue to perform services after bankruptcy (as a condition prece dent to payment) does not preclude a finding that the bankruptcy estate has an interest in the contingent contract right to future payment.” Id. Thus, the bankruptcy court properly determined that some portion of Jess’s contingent fee agreements were included in property of the estate. Of the Ninth Circuit authority, In re Wu is most analogous to Jess’s situation. Although factually distinguishable, Wu’s allocation between prepetition and postpetition services applies here, as well. In addition, this approach is consistent with decisions from other jurisdictions. According to Wu, the proper analysis under Ryerson is for a court “to first determine whether any postpetition services are necessary to obtaining the payments at issue. If not, the payments are entirely ‘rooted in the pre-bankruptcy past’ ... and the payments will be included in the estate.” Wu, 173 B.R. at 414. If postpetition services are necessarily performed, then the court must determine “the extent to which the payments are attributable to the postpetition services and the extent to which the payments are attributable to prepetition services”. Id. at 414. Under both Ryerson and Wu the fact that postpetition services are necessarily performed does not cause the right to payment for prepetition services to be excluded from the estate. Jess performed additional postpetition services necessary to obtain the contingent fee; thus we go to the next step of the analysis according to Wu. In this case, both parties stipulated to the valuation of the prepetition services as determined by the bankruptcy court below. Therefore, the stipulated value of the prepetition services performed are included in the property of the estate. In this appeal, Jess, who does not cite Wu, principally relies on language from In re Tully, 202 B.R. 481, 483 (9th Cir. BAP 1996) (quoting In re Sloan, 32 B.R. 607, 611 (Bankr.E.D.N.Y.1983)): “Where a debtor derives" }, { "docid": "16641680", "title": "", "text": "as opposed to all profits generated by his law practice. Although a chapter 11 case, FitzSimmons fits into the analysis of the present case. In In re Ryerson, 739 F.2d 1423 (9th Cir.1984), the debtor was a district manager for an insurance company. His employment agreement provided that, if he were terminated, the employer would pay him “contract value” provided he had held the position for at least one year. The debtor served as district manager for approximately four years prior to filing a chapter 7 petition; he was terminated several months later. The debtor sought a declaratory judgment that the $18,500 in “contract value” was not prop erty of the estate. The court rejected the debtor’s contention that the estate had no interest in the “contract value” because he had not yet been terminated at the time he filed bankruptcy and his right to contract value was, therefore, unvested and contingent. Id. at 1425. Because the debtor’s right to contract value was property of the estate, the court determined that any payments pursuant to that right were property of the estate, even though paid postpetition. The court indicated that the test of whether such postpetition payments were property of the estate is whether such payments are “sufficiently rooted in the pre-bankruptcy past” and concluded the termination payments “representing value for years of service completed prior to bankruptcy, and not being an arbitrary amount arising after bankruptcy,” are property of the estate. Id. at 1426. Similarly, in In re Wu, the Panel, relying on Ryerson, determined that postpetition renewal commissions for policies the debtor, an insurance agent, sold prepetition were alloca-ble between the prepetition and postpetition services of the debtor. Wu, 178 B.R. at 413-16. The Panel rejected an approach focusing solely on whether the commissions were “dependent upon the performance of postpetition services.” Id. at 414. According to the opinion: This all or nothing approach is inconsistent with FitzSimmons and Ryerson, which, in evaluating earnings having both a prepetition and a postpetition component, caution us to determine the extent to which the earnings are attributable to pre-petition property or" } ]

[ { "docid": "22980528", "title": "", "text": "the basis that the parties lacked complete diversity because Eddings was a Mississippi citizen. Eddings filed a motion to dismiss and a motion for summary judgment. The district court denied the motion for remand holding that (1) Eddings had been fraudulently joined, and (2) Laughlin’s complaint stated a separate and independent claim for breach of contract against the five diverse insurance defendants which would have been removable if sued upon alone. The district court granted partial summary judgment dismissing the claims against Eddings. Laughlin filed this interlocutory appeal. Analysis The threshold issue in this appeal is whether removal was proper. We hold that it was not. Pursuant to 28 U.S.C. § 1441(a): [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. The removing party bears the burden of establishing federal jurisdiction. B., Inc. v. Miller Brewing Co., 663 F.2d 546 (5th Cir.1981). Where there are allegations of fraudulent joinder, the removing party has the burden of proving the fraud. Id. Rebecca Laughlin is a Mississippi citizen. Each of the defendant insurance companies is a foreign corporation and Dr. Bennett is a citizen of the state of Iowa. The defendants urge that Laughlin named Eddings as a defendant in order to defeat federal diversity jurisdiction. The burden of persuasion placed upon those who claim fraudulent joinder is a heavy one. The removing party “must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.” B, Inc., at 549 (footnote omitted). In determining whether remand is appropriate this court must evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff. B., Inc., 663 F.2d at" } ]

[ { "docid": "22136665", "title": "", "text": "which will be shown at a trial of this matter. Discovery did not proceed smoothly in state court. After considerable procedural wrangling and a Motion to Compel, on September 25, 1998, the plaintiff supplemented answers to certain interrogatories. The defendants, contending that those responses established that Defendant Irby was fraudulently joined, removed the action to federal court on October 2, 1998. The district court agreed, dismissed Defendant Irby and the John Doe defendants, and denied a Motion to Remand. After additional discovery, the defendants filed a Motion for Summary Judgment seeking dismissal of plaintiffs remaining claims against Illinois Central. The district court granted this motion on March 16, 2001, dismissing the case. Plaintiff timely appealed. II. The decisive issue in this case is whether the district court erred in denying plaintiffs Motion to Remand based on fraudulent joinder of Defendant Irby. Fraudulent joinder can be established in two ways: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (5th Cir.1999). The defendants do not dispute that Irby is a Mississippi resident. Accordingly, we focus on the second test. Neither our circuit nor other circuits have been clear in describing the fraudulent joinder standard. The test has been stated by this court in various terms, even within the same opinion. For example, the Griggs opinion states, To establish that a non-diverse defendant has been fraudulently joined to defeat diversity, the removing party must prove ... that there is absolutely no-possibility that the plaintiff will be able to establish a cause of action against the non-diverse defendant in state court. 181 F.3d at 699 (emphasis added; citing Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995) and Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995)). The Griggs opinion later restates that test as follows— Stated differently, we must determine whether there is any reasonable basis for predicting that [the plaintiff] might be able to establish [the" }, { "docid": "22097445", "title": "", "text": "remand motion), the Cavallinis filed a third motion for leave to amend, attaching the proposed amendment for the first time. The court conducted, on December 21, an evidentiary hearing on settlement. In mid-January 1994, after the court granted summary judgment for Olsten, see note 3, supra, the Cavallinis re-urged their motion to remand. Shortly thereafter, the court dismissed the claims against Cunningham with prejudice, holding that he had been fraudulently joined, and granted summary judgment for State Farm, holding that the parties had made an enforceable settlement agreement. The district court denied the Cavallinis’ motion for reconsideration. Among other things, they asserted that the court, in ruling on remand, should have considered their affidavits filed in opposition to summary judgment. II. Needless to say, the Cavallinis challenge the remand and settlement rulings. A. “The burden of proving a fraudulent joinder is a heavy one. The removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court, or that there has been outright fraud in the plaintiff’s pleading of jurisdictional facts.” Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984). Because no one disputes that the Cavallinis and Cunningham are Texas residents, “[o]ur sole concern is whether there is a possibility that [the Cavallinis] ha[ve] set forth a valid cause of action” against Cunningham. Id. We “evaluate all of the factual allegations in the plaintiff’s state court pleadings in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff”, id., and “then examine relevant state law and resolve all uncertainties in favor of the nonremoving party.” Id. at 206. The district court held that, as of removal, the Cavallinis’ state court petition (complaint) “did not allege a cause of action against ... Cunningham”. The Cavallinis counter that the complaint states a claim against Cunningham for breach of the duty of good faith and fair dealing; that, together with their affidavits," }, { "docid": "6085285", "title": "", "text": "and quickly obtained copies of the complaints before plaintiffs could serve their amended complaints does not require denial of the motions for remand. C. Fraudulent Joinder More substantively, but no more persuasively, defendants contend that plaintiffs have no colorable claim against the Maryland defendants and, consequently, the fraudulent joinder doctrine bars consideration of the Maryland defendants for purposes of subject matter jurisdiction. Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999). To show fraudulent joinder, the removing defendant must demonstrate either outright fraud in the plaintiffs’ pleadings of jurisdictional facts or that there is no possibility that the plaintiffs would be able to establish causes of action against the instate defendants in state court. Id. at 464 (citing Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)). There is no allegation that the plaintiffs have fraudulently identified the residency of the Maryland resident defendants. Accordingly, the question presented is whether plaintiffs can establish a cause of action against the Maryland defendants. The Fourth Circuit has emphasized that the party alleging fraudulent joinder “bears a heavy burden — it must show that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiffs favor.” Hartley v. CSX Transportation, Inc., 187 F.3d 422, 424 (4th Cir.1999). This standard is even more favorable to the plaintiffs “than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Id. Further, courts should “resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.” Id. at 425. Plaintiffs contend that, at a minimum, they have alleged a colorable claim of negligence under Maryland law against Maryland defendants CEG and BGE. To maintain an action in negligence under Maryland law, a plaintiff must allege facts showing and ultimately proving the following elements: “ ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.’ ” Muthukumarana" }, { "docid": "2743867", "title": "", "text": "policies to put them on notice that the premiums were not guaranteed to vanish.” The court must disagree with defendants’ characterization of the issue. In fact, whether plaintiffs were on notice that the premiums were “not guaranteed to vanish” is not the question at all. Rather, the inquiry is whether the plaintiffs were on notice of the alleged “inflated dividend assumptions,” and “artificial actuarial computations.” The court cannot say that a state court would necessarily answer this question in the affirmative and, as such, defendants’ fraudulent joinder claim on this ground must fail. Based on the foregoing, the court concludes that defendants have failed to show that plaintiffs have no possibility of establishing a cause of action against the nondiverse defendants in state court. For this reason, plaintiffs’ motion is granted, and the case remanded to state court for further proceedings. . Also pending in this case is a motion by defendant New England to dismiss pursuant to Rule 12(b)(6). Because the court concludes herein that plaintiffs’ motion to remand is well taken, the court lacks jurisdiction to consider the motion to dismiss. . Vanishing premium policies are paid dividends which in some instances can be sufficient to cause the premiums to \"offset” whereby dividend values are used to pay the premium. In such an instance, the cash premium \"vanishes” and is no longer due from the insured. . There are no allegations of fraud in the plaintiffs' pleading of “jurisdictional facts.” All parties apparently agree that plaintiff, Jordan and Quinn are Mississippi residents. As such, in order to defeat plaintiffs’ motion to remand, defendants must show that plaintiffs could not establish a cause of action against either Jordan or Quinn in state court. . As already noted, the possibility of recovering against either Quinn or Jordan necessitates the remand of this case to state court. . Because the court will conclude that plaintiffs’ claims are timely under either the six or three-year time frame, the court need not address the issue of which limitations period actually governs. . Miss.Code Ann. § 15-1-67 (1972) provides: If a person liable to" }, { "docid": "16199107", "title": "", "text": "MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. This cause is before the court on the motion of plaintiff Carolyn Cleveland to remand to the Circuit Court of Hinds County, Mississippi. Defendant Central United Life Insurance Company (Central United) opposes the motion, and the court, having considered the parties’ memoranda and submissions, concludes that the motion should be granted. Cleveland, in her capacity as Adminis-tratrix of the Estate of Billy Cleveland, filed the present action on December 31, 2002 in state court to recover nearly $375,000 in policy benefits alleged to be owing, together with punitive damages for defendant’s alleged bad faith denial of those benefits under a cancer policy issued to Billy Cleveland in 1992 by Commonwealth National Life Insurance Company (Commonwealth). Plaintiff, a Mississippi resident, named as defendants both Commonwealth, which is a Mississippi insurer, and Central United, a Texas insurer which plaintiffs allege is hable on the policy by virtue of a 1997 “Assumption Reinsurance Agreement” by which Central United agreed to assume the Commonwealth’s rights, title and obligations on Mr. Cleveland’s Commonwealth policy. On January 30, 2003, Central United removed the case to this court on the basis of diversity jurisdiction, asserting that Commonwealth, the nondiverse defendant, has been fraudulently joined. Plaintiff has moved to remand, contending that her complaint sets forth viable claims against Commonwealth and that the court therefore lacks subject matter jurisdiction. The defendant, as the removing party, bears the burden of establishing the existence of federal jurisdiction, and where charges are made of fraudulent joinder, the defendant also bears the burden of establishing the claimed fraud by demonstrating that “there is no possibility that [the plaintiff] would be able to establish a cause of action against [the nondiverse defendants] in state court.” Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). In evaluating fraudulent joinder claims, the court must “resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party.” Id. The court must then determine “whether that party has any possibility of recovering against the party whose joinder is" }, { "docid": "15787017", "title": "", "text": "FCA. Accordingly, the Court GRANTS the Defendants’ motions to dismiss and dismisses the complaint. I.Introduction. This lawsuit concerns a Federal Communications Commission (“FCC”) auction for four hundred twenty two (422) wireless telecommunication spectrum licenses. The auction for a subset of the licenses was limited to “designated entities;” for the remaining licenses subject to open bidding, designated participants benefitted from “auction credits” that improved their bidding positions. The Plaintiff participated in the auction as a designated entity and lost various bids to one of the Defendants, a designated entity named Alaska Native Wireless, L.L.C. (“ANW”). The Plaintiff contends that ANW was a Trojan horse by which AT & T—a majority shareholder of ANW—entered auctions under the guise of a designated entity. The Plaintiff filed suit in state court against ANW and several AT & T affiliates, as set forth above, alleging unfair business practices and interference with prospective economic advantage. The Plaintiff seeks in excess of $1 billion in damages and restitution. The Defendants removed on the basis of diversity, claiming fraudulent joinder of the resident defendants, and claiming complete preemption under the Federal Communications Act of 1934. Several motions are now pending before the Court. The AT & T defendants move to dismiss under theories of preemption, failure to state a claim, or in the alternative in conjunction with a FCC referral under the primary jurisdiction doctrine. ANW moves to dismiss for lack of personal jurisdiction. The Plaintiff moves to remand, arguing that the resident Defendants are properly joined and defeat removal on grounds of diversity. II. Facts. The underlying facts of this action are extensively discussed in the moving papers. Other than as identified in the analysis there are no material facts in dispute. III. Analysis. The Court must ascertain its subject matter jurisdiction before testing either ANW’s challenge to personal jurisdiction, or AT & T’s challenges to the choice of law, the forum or the adequacy of the complaint. A federal court may exercise removal jurisdiction over a case only if jurisdiction existed over the suit as originally brought by the plaintiff. See 28 U.S.C. § 1441(a). A" }, { "docid": "4374519", "title": "", "text": "ORDER MILLS, District Judge. This cause comes before the court on the motion of plaintiff Sammy Henderson, pursuant to 28 U.S.C. § 1447, to remand [20-1] this case to the Circuit Court of Bolivar County. Defendants Ford Motor Company (“Ford”), et al have responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, along with other pertinent authorities, concludes that the motion is not well taken and should be denied. This wrongful death action involves products liability claims asserted by Sammy Henderson arising out of the death of Wanda Henderson in a June 1, 2002 automobile accident. In his complaint, plaintiff alleges that the accident resulted from the unreasonably dangerous condition of the 1997 Ford Explorer in which the decedent was riding, which defects resulted in the vehicle “rolling over.” Plaintiff filed suit in the Circuit Court of Bolivar County on August 11, 2004, and the case was removed to this court on the basis of diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff has moved to remand, arguing that diversity jurisdiction is. lacking in this case inasmuch as the retailer defendant Flatland Ford, Lincoln, Mercury, Inc. (“Flatland”) is, like plaintiff, a Mississippi resident. Defendants counter that Flatland was fraudulently/improperly joined for the purposes of defeating removal jurisdiction and that the residence of this defendant should therefore be disregarded for jurisdictional purposes. The removing party, which is urging jurisdiction on the court, bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). The Fifth Circuit has stated: The burden of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549" }, { "docid": "22786250", "title": "", "text": "the insurer removed the action, the district court rejected the plaintiffs motion to remand for want of diversity jurisdiction. The district court held that the plaintiff had failed to state a claim on the merits against the non-diverse psychologist, and dismissal of that claim resulted in complete diversity between the plaintiff and the insurer. The district court subsequently also dismissed the claim against the insurer for failure to state a claim, and the plaintiff appealed from the final judgment. This court vacated the judgment for lack of subject-matter jurisdiction. We reviewed the standards to be applied in a fraudulent joinder analysis and summarized those standards as follows: A district court must consider a number of settled precepts in ruling on a petition to remand a case to state court for lack of diversity jurisdiction. When a non-diverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined. But the removing party carries a heavy burden of persuasion, in making this showing. It is logical that it should have this burden, for removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment. But, if there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.... In evaluating the alleged fraud, the district court must focus on the plaintiffs complaint at the time the petition for removal was filed. In so ruling, the district court must assume as true all factual allegations of the complaint. It also must resolve any uncertainties as to the current state of controlling substantive law" }, { "docid": "5614851", "title": "", "text": "ask whether the plaintiff has a substantive cause of action against the nondiverse parties. Can the facts support the plaintiffs’ substantive claims against the nondiverse defendants? See Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5 Cir. 1979). Miles argues that because the suit against Dr. Andres and Tulane, the nondiverse defendants, is procedurally barred by La.R.S. § 40:1299.47 B(1)(a)(i), they were fraudulent joined. The Court disagrees. Miles mistakes procedure for substance. The Court holds that the nondiverse defendants were not fraudulently joined and, consequently, the case must be remanded to state court. John and Jane Doe have stated a viable cause of action under which the doctor or Tulane could be found liable, if the evidence supports their claims. The plaintiffs may be procedurally barred from suing at this time because they failed to convene a medical-review panel before filing suit, but they certainly have stated a cause of action that could impose liability on Dr. Andres or Tulane. Taking into account the obligation to narrowly construe removal jurisdiction, and recognizing that the burden of proving fraudulent joinder is a heavy one, this Court holds that the plaintiffs did not fraudulently join Dr. Andres and Tulane. The plaintiffs have stated a cause of action under state law. To hold to the contrary on these facts, would exalt procedure over substance. Therefore, fraudulent joinder is not applicable, and complete diversity is lacking in this case. The plaintiffs’ motion to remand is GRANTED. . See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921) (fraudulent joinder of resident defendant, who had no real connection to the case, could not defeat the right of removal). . See also Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5 Cir.1990) (“[a]fter all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned”); Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5 Cir.1989) (court" }, { "docid": "23039162", "title": "", "text": "Farm Lloyds or Blum. Shortly thereafter, Griggs served State Farm Lloyds. Blum was ’ never served. State Farm Lloyds then timely removed the case, alleging diversity jurisdiction. Griggs and Blum are both citizens of Texas. State Farm Lloyds is for jurisdictional purposes a citizen of Illinois. State Farm Lloyds’ removal petition alleged that diversity jurisdiction was proper, notwithstanding the fact that Griggs and Blum are both Texas residents, because Blum was fraudulently joined. State Farm Lloyds thereafter moved to dismiss Blum as fraudulently joined, and Griggs joined issue by moving for remand to state court. In October 1997, the district court held a hearing on the propriety of State Farm Lloyds’ removal. In the course of that hearing, the district court entered an oral finding that Blum was fraudulently joined. The district court also invited State Farm Lloyds to file a motion seeking to recover its attorney fees to the extent they were expended defending Blum against the fraudulent claims. The district court thereafter entered orders dismissing Blum as fraudulently joined and denying Griggs’ motion to remand, ordering Griggs to pay Blum’s attorney fees in the amount of $4,725, and holding that diversity jurisdiction was proper. Griggs appeals from these holdings. ORDER DENYING GRIGGS’ MOTION TO REMAND I. The district court’s orders dismissing Blum and denying Griggs’ motion to remand to state court present questions of law, which we review de novo. Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir.1995). To establish that a non-diverse defendant has been fraudulently joined to defeat diversity jurisdiction, the removing party must prove that there has been outright fraud in the plaintiffs pleading of the jurisdictional facts, or that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the non-diverse defendant in state court. Burden, 60 F.3d at 217; Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995). There is no dispute concerning the fact that both Griggs and Blum are Texas residents. Consequently, our sole concern is whether, as a matter of law, Griggs has alleged" }, { "docid": "12936861", "title": "", "text": "Extended Manufacturer’s Liability Doctrine” or AEMLD. The AEMLD action is premised upon both failure to warn (¶41) and defective design (¶ 42) Compl. ¶¶ 33-42. Finally, Count III of the complaint accuses the defendants of fraud, misrepresentation, and suppression. Compl. ¶¶ 43-47. Defendants removed on November 24, 1997, invoking this court’s congressionallyauthorized diversity jurisdiction under United States Code, Title 28, section 1332(a). Plaintiffs moved for remand on December 8, 1997. The parties’ briefing has amply informed the court of their respective positions regarding the propriety of the removal and the issues joined are now ripe for this court’s consideration. Upon full consideration of the premises, the court concludes that the jurisdictional requisites of complete diversity and $75,000 in controversy are present in this case. Subject matter jurisdiction is therefore vested in this court by 28 U.S.C. § 1332 and the motion to remand will be denied. II. DIVERSITY OF CITIZENSHIP The plaintiffs are residents of Alabama. While none of the Manufacturer defendants have domicile in Alabama for diversity purposes, at least three of the Distributor defendants have Alabama domicile. Therefore, complete diversity does not exist on the face of the complaint. This much is incontestible. Strawbridge v. Curtiss, 3 Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806). Although the rule of complete diversity is of rather' rare vintage in our system of laws, it was also recognized some years ago that a defendant’s “right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy.” Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). The two “classic” forms of fraudulent joinder exist when “there is no possibility that the plaintiff would be able to establish a cause of action against the resident defendant in state court or [when] there has been outright fraud in the plaintiffs pleading of jurisdictional facts.” Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983); also see Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989). As a corollary to the first form" }, { "docid": "4533907", "title": "", "text": "argue that this Court lacks subject matter jurisdiction because 1) Pisarczyk and Hess are properly joined defendants who destroy diversity by virtue of the fact that they and the plaintiffs are domiciliaries of Louisiana and 2) the jurisdictional amount is not met by each plaintiff and the plaintiffs’ punitive damages claims cannot be aggregated to meet the jurisdictional amount. Pisarczyk and Hess, filed a related motion to dismiss on the ground that they were fraudulently joined. For the reasons set forth below, the Court finds that it has subject matter jurisdiction over this action. DIVERSITY OF CITIZENSHIP The first issue the Court addresses is whether the Louisiana defendants, Pisarczyk and Hess, were fraudulently joined. If they were fraudulently joined, then their presence may be disregarded and does not destroy diversity of citizenship. Fraudulent joinder exists “[i]f there is no arguably reasonable basis for predicting that state law might impose liability on the resident defendants.” Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979). The removing party has the burden to show that actual fraud exists in the plaintiff’s pleadings of jurisdictional facts, or that the plaintiff will not be able to establish a cause of action against the non-diverse defendant. Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir. 1989). Under Louisiana law, personal liability cannot be imposed on an employee simply because of his general administrative responsibility for the performance of some function of his employment; he must have an independent, personal duty to the plaintiff. Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973). “Agents are not liable to third persons for nonfeasance or mere omissions of duty. They are responsible to such parties only for the actual commission of those positive wrongs for which they would be otherwise accountable in their individual capacity, under the obligations common to all other men.” Prince v. Nationwide Ins. Co., Civ. A. No. 88-2858, 1989 WL 10682 *1 (E.D.La. Feb. 9, 1989) (quoting Tyler v. Walt, 184 La. 659,167 So. 182, 187 (1936)). The plaintiffs’ state court petitions allege that Pisarczyk and Hess are liable as a" }, { "docid": "6085284", "title": "", "text": "joined and served defendants be a citizen of the state in which the action was initially brought.” Pechersky 636 F.2d at 1160, 1161 n. 6 (noting that because simultaneous service upon multiple defendants is unlikely to occur, removal could be proper one day when service of certain defendants was completed, but improper the next day when all defendants have been served); see also Katz v. Costa Armatori, S.p.A, 718 F.Supp. 1508, 1511 (S.D.Fla.1989); and see Sharp v. Elkins, 616 F.Supp. 1561 (W.D.La.1985) (congressional intent behind section 1441(b) is to restrict federal removal jurisdiction, not expand upon it); South Panola Consol. School Dist. v. O’Bryan, 434 F.Supp. 750, 754 (N.D.Miss.1977) (same); Workman v. National Supaflu Systems, Inc., 676 F.Supp. 690, 692 (D.S.C.1987); cf. Hunter Douglas Inc. v. Sheet Metal Workers Intern. Ass’n. Local 159, 714 F.2d 342, 345 (4th Cir.1983)(diversity jurisdiction is determined by the face of the complaint, not by which defendants have been served). Accordingly, the fact that defendant Aventis Pasteur, Inc., cleverly managed to learn of the filing of the first four cases and quickly obtained copies of the complaints before plaintiffs could serve their amended complaints does not require denial of the motions for remand. C. Fraudulent Joinder More substantively, but no more persuasively, defendants contend that plaintiffs have no colorable claim against the Maryland defendants and, consequently, the fraudulent joinder doctrine bars consideration of the Maryland defendants for purposes of subject matter jurisdiction. Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999). To show fraudulent joinder, the removing defendant must demonstrate either outright fraud in the plaintiffs’ pleadings of jurisdictional facts or that there is no possibility that the plaintiffs would be able to establish causes of action against the instate defendants in state court. Id. at 464 (citing Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)). There is no allegation that the plaintiffs have fraudulently identified the residency of the Maryland resident defendants. Accordingly, the question presented is whether plaintiffs can establish a cause of action against the Maryland defendants. The Fourth Circuit has emphasized that the party alleging fraudulent joinder “bears" }, { "docid": "22574527", "title": "", "text": "to state court, arguing that they stated a valid claim for continuing nuisance against Coleman under Georgia law. Defendants responded by contending that Plaintiffs’ complaint only alleged a cause of action for trespass and, if a nuisance had been alleged, that Plaintiffs could succeed on no nuisance claim against Coleman. On November 30, Plaintiffs moved to amend their complaint to state expressly a cause of action for nuisance. On January 11, 1996, the district court issued an order (1) denying Plaintiffs’ motion to remand to state court, concluding there was no possibility Plaintiffs could establish a cause of action against Coleman; (2) denying Plaintiffs’ motion to amend the complaint as futile; and (3) granting Defendant Coleman’s motion for summary judgment. II. Discussion A. The Law of Remand In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989). The burden of the removing party is a “heavy one.” B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981). To determine whether the ease should be remanded, the district court must evaluate the factual allegations in the fight most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff. Id. at 549. The federal court makes these determinations based on the plaintiffs pleadings at the time of removal; but the court may consider affidavits and deposition transcripts submitted by the parties. Id. While “the proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P. 56(b),” id. at n. 9, the jurisdictional inquiry “must not subsume substantive determination.” Id. at 550. Over and over again, we stress that “the trial court must be certain of its jurisdiction before embarking upon a safari in search" }, { "docid": "22442053", "title": "", "text": "may nevertheless be removable if the joinder of the non-diverse party, defendant Cramp, were fraudulent. Tapscott, 77 F.3d at 1359. Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity. Joinder has been deemed fraudulent in two situations. The first is when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant. Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983), superceded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir.1993). The second is when there is outright fraud in the plaintiffs pleading of jurisdictional facts. Coker, 709 F.2d at 1440. In Tapscott, 77 F.3d at 1355 (11th Cir.1996), a third situation of fraudulent joinder was identified — i.e., where a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant. Id. at 1360. In the instant case, the parties do not suggest that there has been “outright fraud in the plaintiffs pleading of jurisdictional facts,” so we concern ourselves only with the first and third types of fraudulent joinder. Turning to the first type, “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Coker, 709 F.2d at 1440-41 (emphasis added). The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate. In the instant case, Triggs has asserted facts which clearly state a potential cause of action against Crump in state court. He has alleged that Cramp and Omni, working in concert, defrauded him by misrepresenting and suppressing material facts with regard to automobile" }, { "docid": "14061961", "title": "", "text": "ORDER MILLS, District Judge. This cause comes before the court on the motion of plaintiffs Jerry W. Duffin, et al., pursuant to 28 U.S.C. § 1447, to remand [10-1] this case to the Circuit Court of Washington County. Defendants have responded in opposition to the motion, and the court, having considered the memoran-da and submissions of the parties, along with other pertinent authorities, concludes that the motion is well taken and should be granted. This is a mass-joined asbestos action in which numerous plaintiffs seek recovery against numerous defendants for injuries which allegedly resulted from exposure to asbestos-containing products. Plaintiffs filed suit in the Circuit Court of Washington County on December 30, 2002, and, on October 8, 2003, defendants removed to this court on the basis of diversity jurisdiction. See 28 U.S.C. § 1332. Plaintiffs have moved to remand, arguing that diversity of citizenship is lacking in this case inasmuch as they seek recovery against certain local retailers of asbestos-containing products which are, like themselves, Mississippi residents. Defendants counter that the local retailers were fraudulently joined for the purpose of defeating removal jurisdiction and that remand would therefore be inappropriate. The removing party, which is urging jurisdiction on the court, bears the burden of demonstrating that jurisdiction is proper due to fraudulent joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). The Fifth Circuit has stated: The burden of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In evaluating a motion to remand, the court considers summary judgment-type evidence to pierce the pleadings. This evidence may include the pleadings, affidavits and deposition transcripts. Hart v. Bayer Corp., 199 F.3d 239, 246-47 (5th Cir.2000). The" }, { "docid": "5117476", "title": "", "text": "larger, nonresident corporation. When plaintiff learned that the action against Mid-Cal would not destroy diversity jurisdiction, he chose to voluntarily dismiss that defendant. On April 12, 1979, plaintiff served Lucky Stores, Inc., a California corporation, as a John Doe distributor defendant. Defendant Time, asserting diversity jurisdiction, removed the action to this court on May 30, 1979. Plaintiff moves to remand on the basis that the joinder of Lucky Stores defeats diversity jurisdiction. Time acknowledges that the joinder of Lucky Stores, Inc. as a defendant appears to defeat this court’s jurisdiction because of a lack of complete diversity since plaintiff is a California resident, and also' because of the requirement of 28 U.S.C. § 1441(b) that no defendant be a resident of the forum state. Nevertheless, defendant resists remand arguing that the claim against Time, a nonresident corporation, is separate and independent from the claims against the resident distributor defendants, and that in any event the joinder of the distributor defendants is fraudulent and must therefore be disregarded. I have concluded that the claim against Time, Inc. is not separate and independent from the other claims. Nonetheless, because of the serious First Amendment interests involved, and the presence of indicia of fraudulent joinder, I have decided to retain jurisdiction for the present. Accordingly, I will deny the motion for remand without prejudice to a renewed motion. I REMOVAL IN GENERAL Any consideration of a motion to remand must commence with a recognition of the limited nature of removal jurisdiction, and that the scope of the removal statute must be strictly construed. Glucksman v. Columbia Broadcasting System, Inc. (S.D.Cal. 1963) 219 F.Supp. 767, 768; 14 Wright & Miller, Federal Practice & Procedure § 3721, pp. 535-537. This rule exists not only because federal courts, being courts of limited jurisdiction, must confine themselves to the jurisdiction granted by Congress, Victory Carriers Inc. v. Law (1971) 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, but also because of a plaintiff’s traditional right to select the forum and “to prosecute his own suit in his own way to a final determination.” Parks v. New" }, { "docid": "15787018", "title": "", "text": "defendants, and claiming complete preemption under the Federal Communications Act of 1934. Several motions are now pending before the Court. The AT & T defendants move to dismiss under theories of preemption, failure to state a claim, or in the alternative in conjunction with a FCC referral under the primary jurisdiction doctrine. ANW moves to dismiss for lack of personal jurisdiction. The Plaintiff moves to remand, arguing that the resident Defendants are properly joined and defeat removal on grounds of diversity. II. Facts. The underlying facts of this action are extensively discussed in the moving papers. Other than as identified in the analysis there are no material facts in dispute. III. Analysis. The Court must ascertain its subject matter jurisdiction before testing either ANW’s challenge to personal jurisdiction, or AT & T’s challenges to the choice of law, the forum or the adequacy of the complaint. A federal court may exercise removal jurisdiction over a case only if jurisdiction existed over the suit as originally brought by the plaintiff. See 28 U.S.C. § 1441(a). A strong presumption exists against removal jurisdiction. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The removing party bears the burden of establishing that federal subject matter jurisdiction exists. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.1988). In this matter the Defendants argue that there is a federal question un der the doctrine of complete preemption, and diversity under the fraudulent joinder analysis. A. Subject Matter Jurisdiction. The Court may have subject matter jurisdiction of this action through federal question jurisdiction or diversity. Although the complaint pleads only two state causes of action, AT & T argues that it nonetheless presents a federal question as a function of complete preemption by the Communications Act of 1934, as amended, 47 U.S.C. §§ 151 et. seq (“FCA”). AT & T also argues that this Court has diversity jurisdiction, on grounds that the Plaintiff fraudulently joined the two resident Defendants. TPS," }, { "docid": "4374520", "title": "", "text": "arguing that diversity jurisdiction is. lacking in this case inasmuch as the retailer defendant Flatland Ford, Lincoln, Mercury, Inc. (“Flatland”) is, like plaintiff, a Mississippi resident. Defendants counter that Flatland was fraudulently/improperly joined for the purposes of defeating removal jurisdiction and that the residence of this defendant should therefore be disregarded for jurisdictional purposes. The removing party, which is urging jurisdiction on the court, bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992). The Fifth Circuit has stated: The burden of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court; or that there has been outright fraud in the plaintiffs pleadings of jurisdictional facts. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility of recovery;” to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of [improper] joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir.2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir.2000)). This motion to remand involves an important issue of law, namely whether Miss. Code. Ann. § 11-1-64, which was enacted as part of the Legislature’s Fall 2002 special session on “tort reform,” entitles “innocent sellers” to dismissal in federal court upon a finding of improper joinder. This is an issue about which reasonable minds can disagree. Section 11-1-64 is a rather peculiar statute, permitting sellers whose liability is “ based solely on [their] status as a seller in the stream of commerce” to obtain dismissals in state court, while still nominally being considered defendants for jurisdictional purposes. Specifically, the statute, which only applies to cases filed" }, { "docid": "22874376", "title": "", "text": "section 1332, together with the case law which has developed since the 1958 amendment, dictates our holding. We therefore find that the district court was correct in finding that Standard Fruit’s possible Latin American principal place of business would not destroy diversity jurisdiction against alien Plaintiffs, and AFFIRM the court on this issue. II. FRAUDULENT JOINDER As stated earlier, in order for removal under section 1441 to be proper, no defendant can be a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). Defendant Dole is a citizen of Florida, where this action originated. The district court, however, found that Defendant Dole had been fraudulently joined by Plaintiffs and accordingly dismissed Dole from the case and exercised diversity jurisdiction over the remaining parties. In determining that Dole had been fraudulently joined, the district court found “no possibility” that Plaintiffs would be able to establish a “colorable” cause of action against Dole under Florida law in state court. Barrantes Cabalceta, 667 F.Supp. at 886-37. For the reasons set forth below, we find that the case must be remanded for further determination by the district court under Costa Rican law. The removing party bears the burden of proving that the joinder of the resident defendant was fraudulent. Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983). The test for determining whether or not a defendant has been fraudulently joined is twofold: (1) look to see whether there is no possibility the plaintiff can establish any cause of action against the resident defendant; and (2) look to see whether plaintiff has fraudulently pled jurisdictional facts in order to bring the resident defendant into state court. Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir.1988). These determinations should be made based upon the plaintiff’s pleadings at the time of removal. See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 349, 83 L.Ed. 334 (1939). In addressing the issue of fraudulent joinder, the district court should resolve all questions of fact and controlling law in favor of the plaintiff and can consider any submitted affidavits" } ]

[ { "docid": "16513859", "title": "", "text": "Mazza the agents' testimony came at the opening of the trial. Thus we are not faced here with the Mazza danger that the agent would testify as to items that would never come into evidence, nor would Pacheco's testimony be bolstered by the law enforcement officer before the jury could evaluate it independently. Furthermore, the government was justified in seeking admission of this testimony because of the defense's attacks on the informant's credibility. The defense fully explored before the jury Pacheco's possible motives to fabricate testimony as well as his status as a paid informant, and the jury reached its own conclusions. Accordingly, we find that the trial court carefully considered the possibility of unfair prejudice in the admission of this testimony and acted within its considerable discretion in rejecting the Rule 403 challenge. TROOPER COSTA'S STATEMENTS In addition to repeating the statements discussed in the preceding section of this opinion, Trooper Costa testified thai during the April 1985 conversation h~ asked for more specific information in or der to evaluate Pacheco's credibility. ThE Trooper then stated, over objection, \"I toic him I had to find the trust in him[] because we had never dealt together before, and the only way we could do that was that he had to tell me the truth whenever I asked him.\" T. 4:63. This testimony merits separate discussion because it deals with a professional government witness vouching for the credibility of an informant. \"We have stated, more often than we care to remember, that it is wrong for a prosecuting attorney to inject his personal beliefs into [a trial].\" United States v. Mejia-Lozano, 829 F.2d 268, 273 (1st Cir.1987). We particularly disapprove of attempts by the government to characterize their witnesses as trustworthy. See, e.g., United States v. Martin, 815 F.2d 818, 821 (1st Cir.1987). The fact that the impermissible vouching is elicited from a government witness makes little difference. See United States v. Price, 722 F.2d 88 (5th Cir.1983) (I.R.S. agent's testimony, elicited by the prosecution, that he believed statements by other government witnesses constituted reversible error). Although we conclude that admission" } ]

[ { "docid": "20952551", "title": "", "text": "the credibility of a witness by indicating a personal belief in the witness’s credibility thereby placing the prestige of the office of the United States Attorney behind that witness.” 170 F.3d 546, 550 (6th Cir.1999). “[Ijmproper vouching involves either blunt comments or comments that imply that the prosecutor has special knowledge of facts not in front of the jury....” Id. (citations omitted). Here, it is clear that the prosecutor did not engage in improper vouching because the prosecutor did not make any comments indicating that she had a personal belief in Carboni’s credibility. Although the prosecutor’s attempt to elicit testimony in support of Carboni’s credibility is clearly not vouching, this line of inquiry does constitute improper bolstering. The Court in Francis stated that “[b]olstering occurs when the prosecutor implies that the witness’s testimony is corroborated by evidence known to the government but not known to the jury.” Id. at 551. Significantly, the Court provided that the prosecutor “may ask a government agent or other witnesses whether he was able to corroborate what he learned in the course of a criminal investigation. However, if the prosecutor pursues this line of questioning, she must also draw out testimony explaining how the information was corroborated and where it originated.” Id. (emphasis added). Thus, if a prosecutor asks a government agent whether the agent was able to corroborate information provided by an informant, the prosecutor must introduce to the jury how that information was corroborated, e.g., via documents or searches. Id. In the case at bar, the prosecutor elicited testimony from narcotics deputy Glen-dening that in each of the seven prior cases where Carboni provided information to the police, the information had been corroborated. However, the prosecutor did not provide the jury with evidence of how, in those instances, the information was corroborated. It was precisely this type of omission that the Court in Francis deemed improper bolstering. Id. at 551 (“The prosecutor’s failure to introduce to the jury whether the information was corroborated via documents, searches, conversations, or other means would lead a reasonable jury to believe that the prosecutor was implying a" }, { "docid": "17083693", "title": "", "text": "1221-22 (10th Cir.2007). F. Bolstering Claim Mr. Ordaz next argues that the district court erred in admitting certain testimony of Special Agent Loy Young. In particular, Mr. Ordaz alleges that when Special Agent Young discussed the process for securing a search warrant, the prosecutor improperly bolstered his credibility as a witness by suggesting there was a prior finding of probable cause. See Aplt. Br. (12-8019) 41—45 (citing United States v. Francis, 170 F.3d 546, 550 (6th Cir.1999)). Again, we review this with respect to all Defendants. Because there was no objection below, we review for plain error. There is simply nothing in the record to support this claim. Although Mr. Ordaz never indicates exactly what language he finds offensive, it appears to be the following exchange: Q: Describe first the process you go through in obtaining a warrant. A: First, during the investigation you obtain information which you believe will amount to probable cause, so you complete an affidavit of probable cause which is then submitted to a judge for review. If the judge feels like there’s enough information amounting to probable cause, then the judge will authorize the search of a residence or person or vehicle, whatever you’re making application to search. Ill R. (12-8010) at 906. Although Mr. Ordaz is correct that improper bolstering may occur “when the prosecutor implies that the witness’s testimony is corroborated by evidence known to the government but not known to the jury,” Francis, 170 F.3d at 551, that is not what occurred here. Special Agent Young’s reference to the fact that a court issued a search warrant does not amount to the prosecutor improperly vouching for or bolstering his testimony in any way. G. Cumulative Error Finally, Mr. Ordaz argues that he suffers a due process violation as a result of cumulative error. In analyzing such a claim, this court aggregates all errors found to be harmless and analyzes whether their effect as a whole would still be harmless. United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002). Because this court finds there was no error—harmless, or otherwise—the claim of cumulative" }, { "docid": "22203856", "title": "", "text": "in this type of speculation. Neither Hampton nor Massey are experts in firearms, and the proffer did not contain an inkling why these witnesses felt there was a similarity between the firearm possessed by Mathis and the murder weapon. Moreover, Mathis’ alleged possession did not occur in close temporal proximity to Hayes’ kidnapping and murder, and there is no evidence that Mathis possessed a firearm on the day of the crimes. Finally, the proffered testimony would have shed no light on what transpired during Hayes’ kidnapping and murder. See id. at 1221 (holding that evidence of alternative perpetrator’s possession of a weapon (similar to that possessed by the defendant) months before stabbing was “suggestive” but inadmissible because such evidence did not connect alternative perpetrator to the defendant’s crime). C Near the conclusion of her direct testimony, Ebony Miller was asked by one of the AUSAs whether she had any “doubt” concerning the statements Lighty made to her on January 3, 2002, to which Miller responded, “no.” Lighty contends that Miller’s answer, admitted over his objection, constitutes improper bolstering. We have held that it is error for the government to bolster or vouch for its own witnesses. United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984). Vouching occurs when the prosecutor’s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993). “Consequently, the prosecutor may not, among other things, make explicit personal assurances that a witness is trustworthy or implicitly bolster the witness by indicating that information not presented to the jury supports the testimony.” Id. In this case, there was no bolstering or vouching. The AUSA neither gave personal assurances that Miller was trustworthy nor indicated that information not presented to the jury supported Miller’s testimony. The AUSA merely elicited testimony confirming that Miller was sure about what Lighty told her on January 3, 2002. The challenged question simply was not improper. D A prosecutor’s improper closing argument may “so infect[] the trial with unfairness as" }, { "docid": "20952550", "title": "", "text": "that finding. The district court found by a preponderance of the evidence that Sauceda was responsible for 1661 kg of marijuana. Based in part on that finding, the district court sentenced Sauceda to a term of 240 months on both the conspiracy and possession counts, to be served concurrently. II. Sauceda argues on appeal that the prosecutor improperly vouched for and bolstered the testimony of the Government’s main witness, informant Ronald Carboni. At trial, the district court overruled defense objections to the following questions posed by the Government to Rodney Glendening, a narcotics deputy: Q: Now you’ve had the occasion to work with Mr. Carboni not only on this case but on some other eases? A: Yes, Ma’am. Q: Approximately how many? A: Seven other cases. Q: And what did you find about the information he had provided to you? A: That the information he’s provided has always been credible, it’s been accurate and truthful. J.A. at 358-359. The Sixth Circuit in United States v. Francis stated that “[improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness’s credibility thereby placing the prestige of the office of the United States Attorney behind that witness.” 170 F.3d 546, 550 (6th Cir.1999). “[Ijmproper vouching involves either blunt comments or comments that imply that the prosecutor has special knowledge of facts not in front of the jury....” Id. (citations omitted). Here, it is clear that the prosecutor did not engage in improper vouching because the prosecutor did not make any comments indicating that she had a personal belief in Carboni’s credibility. Although the prosecutor’s attempt to elicit testimony in support of Carboni’s credibility is clearly not vouching, this line of inquiry does constitute improper bolstering. The Court in Francis stated that “[b]olstering occurs when the prosecutor implies that the witness’s testimony is corroborated by evidence known to the government but not known to the jury.” Id. at 551. Significantly, the Court provided that the prosecutor “may ask a government agent or other witnesses whether he was able to corroborate what he learned in" }, { "docid": "22203857", "title": "", "text": "constitutes improper bolstering. We have held that it is error for the government to bolster or vouch for its own witnesses. United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984). Vouching occurs when the prosecutor’s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993). “Consequently, the prosecutor may not, among other things, make explicit personal assurances that a witness is trustworthy or implicitly bolster the witness by indicating that information not presented to the jury supports the testimony.” Id. In this case, there was no bolstering or vouching. The AUSA neither gave personal assurances that Miller was trustworthy nor indicated that information not presented to the jury supported Miller’s testimony. The AUSA merely elicited testimony confirming that Miller was sure about what Lighty told her on January 3, 2002. The challenged question simply was not improper. D A prosecutor’s improper closing argument may “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Wilson, 135 F.3d 291, 297 (4th Cir.1998) (citation and internal quotation marks omitted). In determining whether a defendant’s due process rights were violated by a prosecutor’s closing argument, we consider (1) whether the remarks were, in fact, improper, and, (2) if so, whether the improper remarks so prejudiced the defendant’s substantial rights that the defendant was denied a fair trial. Id. Lighty claims that, in closing argument at sentencing, the AUSA acted improperly when she argued to the jury that Lighty had worn Hayes’ shoes after he shot him, because the argument was not supported by the evidence. However, Lighty’s argument ignores the fact that there was evidence to support the assertion that Lighty wore Hayes’ shoes after the murder. During the sentencing phase of the trial, the government introduced a May 2, 2002 statement that CW made to a detective with the PGPD. In that state ment, CW indicated that Lighty said “he wore the shoes for a while and then" }, { "docid": "8176224", "title": "", "text": "Agent Teresa Woods to rehabilitate these witnesses and to detail the Government’s investigative techniques. Following a two-day trial, Appellants were convicted. After determining Dickerson’s total offense level under the United States Sentencing Guidelines, the district court asked if there were any motions for departure; both the defense and the prosecution said no. The court expressed its intention to sentence Dickerson at the bottom of the Guidelines and then inquired, “Anything from the defendant?” Dickerson’s counsel addressed the court, but Dickerson did not speak. Dickerson was sentenced to the statutory minimum — 262 months on each of the two counts, to be served concurrently. Lewis was sentenced to 360 months for each of the three counts against him, also to be served concurrently. Both appeal their convictions, and Dickerson appeals his sentence. II. IMPROPER BOLSTERING Appellants claim that the Government in this case improperly bolstered the testimony of its own witnesses. During trial, Appellants attacked the credibility of various witnesses by presenting prior inconsistent statements made by those witnesses to law enforcement officers. The Government sought to rehabilitate by having the case officer, Special Agent Teresa Woods, testify about the process of interrogating witnesses and the investigation of the case. Appellants contend that Woods’s testimony amounted to a “law enforcement expert vouching for the integrity of the investigative process,” and that admission of her testimony is reversible error. (J.A. 17.) We review the admission of this testimony under an abuse of discretion standard. See United States v. Clark, 986 F.2d 65, 68 (4th Cir.1993). It is error for the Government to bolster or to vouch for its own witnesses. United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984); United States v. Piva, 870 F.2d 753, 760 (1st Cir.1989). Vouching generally occurs when the prosecutor’s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir.1992). Consequently, the prosecutor may not, among other things, make explicit personal assurances that a witness is trustworthy or implicitly bolster the witness by" }, { "docid": "19006444", "title": "", "text": "Id. The government candidly concedes that its questioning “may constitute error.” It is vouching. Third, Brooks claims there was vouching in the extensive testimony about the process of obtaining wiretap authorization. This wiretap testimony referenced approval by DEA authorities, the United States Attorney’s Office, and state and federal judges. It implied that the government and courts were monitoring Brooks’s conduct and had determined he was guilty. In United States v. Cunningham, 462 F.3d 708 (7th Cir.2006), the Seventh Circuit examined the propriety of extensive testimony on the wiretap authorization process. The obvious purpose of the evidence was to show the jury there were several senior government attorneys and agents who all believed there was probable cause that the defendants were involved in a drug conspiracy, and, indirectly, that they all believed, in their professional judgment, the defendants were in fact committing drug-related crimes. Id. at 713. The court held that “[t]he government witness was improperly vouching for how good the evidence was,” and that the procedures detailed extensively by the witness, “served only to bolster the credibility of the unnamed attorneys’ and agents’ respective determinations.” Id. The testimony here encouraged the jury to draw inferences against Brooks. By discussing at length the process involved in obtaining a wiretap authorization, the government improperly bolstered its case. As in Cunningham, such testimony indicated that many government attorneys and a federal judge had decided that Brooks was guilty. This is vouching. The government’s argument that such testimony was permissible to lay a foundation for the wiretap evidence fails. Although the parties did not stipulate to the admissibility of the wiretap evidence, the authenticity of the recordings could have been adequately established without such extensive detail. As in Cunningham, the “government does not have to prove that the electronic recording of the conversation was properly authorized by a judge to establish the recording was ‘true, accurate and authentic.’ ” Cunningham, 462 F.3d at 713. Having found different forms of vouching ranging from mild to more serious, we now determine whether the vouching requires reversal. We have not adopted a bright-line rule about when vouching" }, { "docid": "8176225", "title": "", "text": "to rehabilitate by having the case officer, Special Agent Teresa Woods, testify about the process of interrogating witnesses and the investigation of the case. Appellants contend that Woods’s testimony amounted to a “law enforcement expert vouching for the integrity of the investigative process,” and that admission of her testimony is reversible error. (J.A. 17.) We review the admission of this testimony under an abuse of discretion standard. See United States v. Clark, 986 F.2d 65, 68 (4th Cir.1993). It is error for the Government to bolster or to vouch for its own witnesses. United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984); United States v. Piva, 870 F.2d 753, 760 (1st Cir.1989). Vouching generally occurs when the prosecutor’s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir.1992). Consequently, the prosecutor may not, among other things, make explicit personal assurances that a witness is trustworthy or implicitly bolster the witness by indicating that information not presented to the jury supports the testimony. United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). Here, Appellants admit that the prosecutor neither gave explicit personal assurances that his witnesses were trustworthy, nor indicated that information not presented to the jury supported his witnesses’ testimony. While improper vouching must generally come from the prosecutor’s own mouth, a prosecutor’s solicitation of assertions of trustworthiness from government witnesses may also be impermissible vouching. Piva, 870 F.2d at 760. That did not take place in this ease. Case officer Woods did not testify as to anyone’s trustworthiness. Rather, she testified about the investigative techniques employed by the Government. The following is typical of the testimony to which the Appellants objected at trial: Q: How did you make this case? ... A: With this particular case, we never got drug buys, never had drugs on the table, that’s what we always say. We had to use ex-dealers or drug users that has" }, { "docid": "15667856", "title": "", "text": "raise two “vouching” arguments. First, they claim that testimony by FBI Agent Huff constituted improper vouching. Second, appellants claim that the Assistant United States Attorney made improper remarks during her closing argument that amounted to improper vouching for Agent Huffs credibility. Although we find some merit in each claim, we hold that any error was harmless. 1. Agent Huffs Testimony We review the admission of alleged vouching testimony under the harmless error standard. See Rosario-Díaz, 202 F.3d at 65. It is well established that prosecutors may not place the prestige of the United States behind a witness by making personal assurances of credibility or by suggesting that facts not before the jury support the witness’s account. See id. Likewise, the prosecution may not accomplish such improper bolstering through the testimony of other government witnesses. See id. Recently, in Rosario-Díaz, we found that the United States had engaged in improper witness bolstering when the same Special Agent Huff, upon examination by the prosecution, testified that some of a cooperating witness’s statements were “lies” while suggesting that others had been tested for reliability. See id. at 65-66. Although, on the record of that case we held that the improper testimony was harmless error, we warned government prosecutors that they would “tread on thin ice indeed if they continue[d] to practice this technique [of examination] in the future.” Id. at 66. We are again troubled by the testimony of FBI Special Agent Huff. Appellants note one exchange in particular that we think pushes the line of propriety. During Agent Huffs testimony about the custodial statements of appellant Guilbe, the following exchange took place between the prosecutor and Agent Huff: Q: You’ve been an FBI agent for how long? A: Just a little over ten years. Q: And during those ten years or so, have you interviewed many suspects? A: Numerous. Q: Okay, and during those interviews, sir, has it been common or uncommon to have a suspect first deny and then admit involvement in a crime? [Defense objection overruled by district court.] . A: Okay, it is difficult for me to remember a" }, { "docid": "22843191", "title": "", "text": "this case, and your dealings with Mr. Toro, what sort of things did you do in the course of this investigation to assure the evidence you received was true?” As reported above, McManus replied that Toro had been given a polygraph examination regarding the information he provided to the DEA. Attempts to bolster a witness by vouching for his credibility are normally improper and error. The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness’ credibility_ [A] prosecutor may implicitly vouch for the witness’ veracity by indicating that information not presented to the jury supports the testimony. United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984) (quotations and citations omitted); accord United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). Referring to the fact that a witness took a polygraph test may amount to implicit vouching for the credibility of that witness. See United States v. Hilton, 772 F.2d 783, 786 (11th Cir.1985); United States v. Brown, 720 F.2d 1059, 1072 (9th Cir.1983). We need not decide whether the prosecutor’s question about which Calvo complains was improper because even if it was, that error was harmless beyond a reasonable doubt. See United States v. Rosa, 891 F.2d 1063, 1067 (3d Cir.1989) (holding that vouching by reference to polygraph test may constitute harmless error); United States v. Porter, 821 F.2d 968, 974 (4th Cir.1986) (same), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988). As for the contention that the prosecutor reinforced the credibility of Toro, we reiterate that Toro never testified and any prejudice suffered as a result of the mention of the polygraph was cured when the defense elicited during its cross-examination of Agent McManus that Toro had shown signs of deception on a polygraph he took in another case. Any implication as to Toro’s reliability had at most a minor effect on the result in this case. Calvo also argues more generally that the offending question and response" }, { "docid": "22843190", "title": "", "text": "to be irrelevant, because the government may elect not to call the expected witness. When, as here, the impeachment is attempted through cross-examination of another witness, it may be beyond the scope of cross-examination, because the credibility of a future witness typically is not an appropriate subject on direct examination. See Fed.R.Evid. 611(b). Thus, we conclude that the district court did not abuse its discretion when it precluded the defense from using the cross-examination of Agent McManus to impeach the expected witness, DeLamar. See United States v. Portis, 542 F.2d 414, 417 (7th Cir.1976) (“If the jury is to hear refuting testimony, it would ordinarily appear to be preferable that such testimony be directed toward actual testimony heard by the jury. That which will be heard must necessarily remain somewhat in the speculative area until it is articulated from the witness stand.”). C. Finally, Calvo argues that the prosecutor improperly vouched for the credibility of the government’s witnesses—in particular, for Toro, the DEA’s confidential informant— when she asked Agent McManus the following question: “As to this case, and your dealings with Mr. Toro, what sort of things did you do in the course of this investigation to assure the evidence you received was true?” As reported above, McManus replied that Toro had been given a polygraph examination regarding the information he provided to the DEA. Attempts to bolster a witness by vouching for his credibility are normally improper and error. The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness’ credibility_ [A] prosecutor may implicitly vouch for the witness’ veracity by indicating that information not presented to the jury supports the testimony. United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984) (quotations and citations omitted); accord United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). Referring to the fact that a witness took a polygraph test may amount to implicit vouching for the credibility of that witness. See United States v. Hilton, 772" }, { "docid": "19006443", "title": "", "text": "asked about the Brooks trial, he testified that if he gave false testimony, the government “[would] break up my agreement and they [would] end up giving me 25 to life.” It is generally permissible to address an issue on redirect examination that has been raised in cross-examination, United States. v. Sarkisian, 197 F.3d 966, 989 (9th Cir.1999), and here, Soriano’s credibility had been attacked on cross. Still, this questioning was improper vouching. The testimony left “the implication that the court, as well as law enforcement, can, has, and will monitor the [witness’s] truthfulness.” United States v. Ortiz, 362 F.3d 1274, 1279 (9th Cir.2004). The testimony about previous courts monitoring Soriano’s statements and making positive assessments improperly bolstered Soriano’s credibility. “Whether the witnesses have testified truthfully, of course, is entirely for the jury to determine; it is improper to communicate that a credibility determination has been made by the AUSA, law enforcement agents, or the court, or that the government knows whether the witness is being truthful and stands behind the veracity of the witness’s testimony.” Id. The government candidly concedes that its questioning “may constitute error.” It is vouching. Third, Brooks claims there was vouching in the extensive testimony about the process of obtaining wiretap authorization. This wiretap testimony referenced approval by DEA authorities, the United States Attorney’s Office, and state and federal judges. It implied that the government and courts were monitoring Brooks’s conduct and had determined he was guilty. In United States v. Cunningham, 462 F.3d 708 (7th Cir.2006), the Seventh Circuit examined the propriety of extensive testimony on the wiretap authorization process. The obvious purpose of the evidence was to show the jury there were several senior government attorneys and agents who all believed there was probable cause that the defendants were involved in a drug conspiracy, and, indirectly, that they all believed, in their professional judgment, the defendants were in fact committing drug-related crimes. Id. at 713. The court held that “[t]he government witness was improperly vouching for how good the evidence was,” and that the procedures detailed extensively by the witness, “served only to bolster" }, { "docid": "23081520", "title": "", "text": "was being asked to recall. It is the statement that the reports contain nothing to hide which Sanchez challenges as improper vouching. It is impermissible for a prosecutor to vouch for or bolster the testimony of government witnesses in arguments to the jury. United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993). Vouching occurs when a prosecutor indicates a personal belief in the credibility or honesty of a witness; bolstering is an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury. See id. While vouching and bolstering are always inappropriate, “[ijmproper remarks during closing argument do not always mandate retrial. The relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993) (internal quotation marks and citations omitted). In addressing a claim of improper vouching we must first decide whether the comments made in fact constituted vouching or bolstering. If so, we must next determine whether the comments prejudicially affected the defendant by considering (1) the degree to which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3) the strength of proof of guilt absent the inappropriate comments; and (4) whether the comments were deliberately made to divert the jury’s attention. See Mitchell, 1 F.3d at 241; Adam, 70 F.3d at 780. We hold that the single challenged comment about the DEA investigative reports did not constitute any sort of error, plain or otherwise. First, the comment could not properly be eonsidered“vouching.” In making it, the prosecutor did not suggest any personal belief about the credibility of any witness or even the credibility of its evidence. Rather the prosecutor simply said that it introduced the DEA reports, after several misstatements of their contents by Sanchez, because the reports “had nothing to hide.” See, e.g., Lewis, 10 F.3d 1086 (finding a government statement about investigative procedures during closing argument did not constitute improper vouching). The" }, { "docid": "18032409", "title": "", "text": "to La Cabra’s organization. But the ap pellant neither interposed any farther objection nor moved to strike these answers. Hence, our review is for plain error. The impropriety of the last-mentioned testimony is readily apparent. It is black-letter law that “prosecutors may not place the prestige of the United States behind a witness by making personal assurances about the credibility of a witness or by indicating that facts not before the jury support the witness’s testimony.” United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir.2000) (citing United States v. Neal, 36 F.3d 1190, 1207-08 (1st Cir.1994)). It follows inexorably that the prosecution cannot prop up a dubious witness by having a government agent place the stature of his office behind the witness. Id. Although the prosecution’s success often depends on its ability to convince the jury of a particular witness’s credibility, it cannot entice the jury to find guilt on the basis of a DEA agent’s opinion of the witness’s veracity. Lugo’s testimony constitutes a flagrant breach of these standards. It invited the jury to give weight to his belief that Irizar-ry had told the truth during the investigation of the Tibes gang. Equally as improper was Lugo’s ipse dixit that “several other witnesses” — none of whom were identified — had purportedly corroborated Irizarry’s testimony about the appellant’s involvement in Saul Perez’s murder. In these ways, Lugo placed the prestige of his lengthy government service behind Irizar-ry’s statements. Furthermore, the reliance on “evidence” not before the jury constituted an independent (and even more serious) lapse. See Balsam, 203 F.3d at 88 (condemning a prosecutor’s reliance on facts outside the record to support a prosecution witness). The challenged testimony was improper and never should have seen the light of day. See, e.g., United States v. Martinez, 253 F.3d 251, 253-54 (6th Cir.2001); Rosario-Diaz, 202 F.3d at 65-66. To make a bad situation worse, this hardly seems to be an innocent lapse. Lugo was a veteran DEA agent and had an obvious interest in bolstering Irizarry’s credibility. Having found improper bolstering, we apply the test for plain error. See Duarte," }, { "docid": "23081519", "title": "", "text": "of the interviews in an effort to refresh his recollection, but did not introduce those reports into evidence. During this cross-examination, Sanchez made misleading references about the content of those reports and was corrected by the court for those references. After Sanchez’s questioning of Espinosa, the government moved the DEA reports at issue into evidence, with no objection from Sanchez. During closing arguments, Sanchez told the jury at least twice that Espinosa was a liar and that the government knew he lied and ignored it. In support of these assertions, Sanchez asked the jury to look at the inconsistencies in the DEA reports that were now in evidence. In its closing rebuttal, the government also invited the jury to look at the DEA reports to which the defense had referred. The government then said, “[t]he United States moved them into evidence because there is nothing to hide in these reports.” The government went on to admit that there were inconsistencies in Espinosa’s stories but said that those small errors were natural given the detail Espinosa was being asked to recall. It is the statement that the reports contain nothing to hide which Sanchez challenges as improper vouching. It is impermissible for a prosecutor to vouch for or bolster the testimony of government witnesses in arguments to the jury. United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993). Vouching occurs when a prosecutor indicates a personal belief in the credibility or honesty of a witness; bolstering is an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury. See id. While vouching and bolstering are always inappropriate, “[ijmproper remarks during closing argument do not always mandate retrial. The relevant question is whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993) (internal quotation marks and citations omitted). In addressing a claim of improper vouching we must first decide whether the comments made in fact constituted" }, { "docid": "15667855", "title": "", "text": "extensively by Agent Huffs account of his investigation and the custodial statements of appellants. Other details of the crime were corroborated by Carmona’s sister, who saw her parked at the gas station a short time before her abduction, and by the owner of the license plate that was stolen and affixed to the Pathfinder. The thrust of appellants’ challenge to all of this evidence is that witnesses Figueroa and González were bad people who should not be believed. However, the jury was presented with substantial evidence of the criminal histories of both men, including ample cross-examination, and chose to accept their version of the facts, at least in its core elements, after careful and proper instruction by the court noting the cooperation agreements between the cooperating witnesses and the government. The testimony of the two cooperating witnesses, which was corroborated by that of Agent Huff, was clearly not “insubstantial” or “incredible” on its face, and we therefore hold that there was sufficient evidence for the jury to convict both appellants. B. Improper Vouching Appellants next raise two “vouching” arguments. First, they claim that testimony by FBI Agent Huff constituted improper vouching. Second, appellants claim that the Assistant United States Attorney made improper remarks during her closing argument that amounted to improper vouching for Agent Huffs credibility. Although we find some merit in each claim, we hold that any error was harmless. 1. Agent Huffs Testimony We review the admission of alleged vouching testimony under the harmless error standard. See Rosario-Díaz, 202 F.3d at 65. It is well established that prosecutors may not place the prestige of the United States behind a witness by making personal assurances of credibility or by suggesting that facts not before the jury support the witness’s account. See id. Likewise, the prosecution may not accomplish such improper bolstering through the testimony of other government witnesses. See id. Recently, in Rosario-Díaz, we found that the United States had engaged in improper witness bolstering when the same Special Agent Huff, upon examination by the prosecution, testified that some of a cooperating witness’s statements were “lies” while suggesting that" }, { "docid": "14410335", "title": "", "text": "from his pocket. That never happened. Figueroa argues that the above statements constituted improper vouching or bolstering of the agents’ credibility that unfairly prejudiced him. In particular, he claims that “the clear purpose of the government’s argument regarding the release of the third person was to persuade the jury that prior to trial the government engaged in a process to release the arguably innocent and charge only the unquestionably guilty.” He asserts that by stating that the third person was not prosecuted because the district attorney thought there was insufficient evidence against him, the closing argument implied that the district attorney had determined the evidence against Figueroa and Medina was solid. It is well established that federal prosecutors may not resort to improper means or argument in order to obtain a conviction. See, e.g., United States v. Capone, 683 F.2d 582, 585 (1st Cir.1982) (“It is as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a conviction as it is to use every legitimate means to bring about a just one.”). Further, the government cannot use the “prestige of the United States” to bolster the credibility of its witnesses. United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st Cir.2000). The statements complained of, which are quoted above, are not even arguably vouching in its classic form. The archetypal example of vouching is a prosecutor’s claim that the witness should be believed because the prosecutor — a representative of the government — believes the witness (hence, the term “vouching” as in “vouching for”), and it has been extended to embrace other instances in which the prosecutor improperly asks the jury to accept the government’s position on the ground that the government in general should be believed or should be assumed always to do the right thing. See, e.g., United States v. Garza, 608 F.2d 659, 664-65 (5th Cir.1979) (finding prosecutor’s closing argument improper where he vouched for the integrity of key government witnesses and “argued that the prosecution would not have been commenced, and that he personally would not have participated unless it had already been determined" }, { "docid": "12935788", "title": "", "text": "events” and his “Fourth Amendment fruit of the poisonous tree argument plainly collapses”). The district court properly rejected Mr. Epps’s argument that the gun, knife, and pillowcase should be suppressed as the fruits of an illegal seizure. III. Mr. Epps also raises a prosecutorial misconduct claim. Specifically, he argues that the government impermissibly vouched for Agent Thompson’s credibility because the prosecutor suggested during closing argument that an uncalled witness could have corroborated Agent Thompson’s testimony. “The Court reviews a prosecutorial misconduct claim de novo because it is a mixed question of law and fact.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). “To find prosecutorial misconduct, a two-pronged test must be met: (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.1991). Improper vouching occurs in two different circumstances: (1) if the prosecutor “placets] the prestige of the government behind the witness, by making explicit personal assurances of the witness’ veracity,” or (2) if the prosecutor “implicitly vouch[es] for the witness’ veracity by indicating that information not presented to the jury supports the testimony.” United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983). Although Mr. Epps does not contend that the prosecutor expressly vouched for Agent Thompson’s credibility, he maintains that the prosecutor’s comment amounted to implicit vouching. We do not agree. A prosecutor engages in implicit vouching when he or she relies on information not before the jury to bolster a witness’s credibility. See United States v. Hands, 184 F.3d 1322, 1333-34 (11th Cir. 1999) (finding it improper for the prosecutor to state that the wife would have echoed her husband’s trial testimony, where the wife was never called as a witness); Eyster, 948 F.2d at 1207 (finding it improper for the prosecutor to suggest that inconsistencies in a key witness’s testimony could be explained by a typographical error, where there was no evidence to support the prosecutor’s typographical error theory). As we stated in United States v. Martinez, 96 F.3d 473, 476 (11th Cir.1996), “argument to" }, { "docid": "22936876", "title": "", "text": "that the prosecutor and Mr. Williams met again, at which time the prosecutor finally believed him and offered him a plea agreement. Mr. Williams’s testimony made it clear to the jury that the plea agreement materialized only after the prosecutor believed him. Because this indicated a belief in the witness’s credibility, it was improper as well. It follows that this set of remarks constitutes improper vouching. Also here are the arguments that the prosecutor engaged in improper bolstering. Bolstering and vouching are much alike and go to the heart of a fair trial. Bolstering occurs when the prosecutor implies that the witness’s testimony is corroborated by evidence known to the government but not known to the jury. United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.1997). A prosecutor may ask a government agent or other witnesses whether he was able to corroborate what he learned in the course of a criminal investigation. However, if the prosecutor pursues this line of questioning, she must also draw out testimony explaining how the information was corroborated and where it originated. See United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.1993). Here, the prosecutor asked Agent Black-wood repeatedly whether he had corroborated information obtained from Mr. Walker. There were at least fourteen such inquiries. Although Agent Blackwood answered each in the affirmative, he provided further detail in only two instances. He did this by properly adding that he had corroborated what Mr. Walker had told him by checking police reports, bank records, tax records, and interviews and conversations with other individuals. He also testified that he had corroborated the drug dealing by arranging for an undercover officer to purchase drugs. On all other occasions, however, Agent Blackwood responded to questions about corroboration by merely asserting that he had, in fact, corroborated the information. The prosecutor’s failure to introduce to the jury whether the information was corroborated via documents, searches, conversations, or other means, would lead a reasonable juror to believe that the prosecutor was implying a guarantee of truthfulness based on facts outside the record. This particular group of comments therefore amounts" }, { "docid": "22936875", "title": "", "text": "wants to amend the sentence ....” Though she stated that each decision regarding the witnesses’ sentences ultimately rested with the sentencing judge, the prosecutor used her opening argument to emphasize the role she would have in recommending whether the witnesses’ sentences should be lowered because of their testimony in the Francis trial. The wording of her argument made it clear that her recommendation would depend on whether she personally believed Mr. Williams and Mr. Walker told the truth. Because this could lead a reasonable juror to infer that the prosecutor had a special ability or extraneous knowledge to assess credibility, the statements were improper. The more troublesome reference to Mr. Williams’s plea agreement came during his testimony as the prosecutor examined him. Through a series of questions, the prosecutor elicited information about the initiation of his plea agreement. The jury heard how the prosecutor and Mr. Williams met once and the meeting ended “abruptly” because the prosecutor “said [Mr. Williams] wasn’t telling the truth, ... wasn’t protecting people at that time.” The jury then heard that the prosecutor and Mr. Williams met again, at which time the prosecutor finally believed him and offered him a plea agreement. Mr. Williams’s testimony made it clear to the jury that the plea agreement materialized only after the prosecutor believed him. Because this indicated a belief in the witness’s credibility, it was improper as well. It follows that this set of remarks constitutes improper vouching. Also here are the arguments that the prosecutor engaged in improper bolstering. Bolstering and vouching are much alike and go to the heart of a fair trial. Bolstering occurs when the prosecutor implies that the witness’s testimony is corroborated by evidence known to the government but not known to the jury. United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.1997). A prosecutor may ask a government agent or other witnesses whether he was able to corroborate what he learned in the course of a criminal investigation. However, if the prosecutor pursues this line of questioning, she must also draw out testimony explaining how the information was corroborated and" } ]

[ { "docid": "5431231", "title": "", "text": "conspired to defraud the plaintiffs in the following way: Philip and Ronald agreed with Jordan to independently approach and interest a number of people who might possibly agree to buy the stock of Purer, including plaintiffs, in order to obtain offers which they did not intend to accept and which they would fraudulently use to induce higher or additional offers from others; that as part of the scheme the defendants fraudulently led each possible purchaser to believe that no other negotiation was or was to be conducted in good faith; and that defendants did not intend to fulfill, or be bound by, such agreements. It is further alleged that as part of the scheme the defendants agreed to make certain fraudulent representations to prospective purchasers with respect to the business and contracts of a company called Tokyo Electric Company, Ltd. Plaintiffs seek compensatory damages under both claims, plus punitive damages under the second. Defendants’ motion is founded almost entirely on the contention that the complaint fails to meet the dual requirements of § 10(b) and SEC Rule 10b-5 of the Exchange Act that the alleged fraud be (1) “in connection with” (2) “the sale or purchase” of any security (for full texts of § 10(b) of the Exchange Act, SEC Rule 10b-5,’ and § 17(a) of the Securities Act, see Appendix), since the alleged fraudulent agreement was never consummated and therefore amounted to no more than an aborted agreement to sell stock of Purer, as distinguished from a “sale or purchase.” Although it has been suggested that an action under § 10(b) of the Exchange Act and SEC Rule 10b-5 may not be founded upon an aborted agreement to buy or sell securities, see Keers & Co. v. American Steel & Pump Corp., 234 F.Supp. 201 (S.D.N.Y.1964), the law in this Circuit and elsewhere now appears to be established that it is unnecessary to prove a consummated, or closed, purchase or sale as condition to the institution of such a suit. Opper v. Hancock Securities Corp., 367 F.2d 157 (2d Cir. 1966); Stockwell v. Reynolds & Co., 252 F.Supp. 215" } ]

[ { "docid": "22176790", "title": "", "text": "claim. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Ahrahamson v. Fleschner, 568 F.2d 862, 868 (2d Cir.1977) (fraudulent inducement to retain securities is not a Rule 10b-5 violation because it is not directly \"in connection with\" any purchase or sale), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), disapproved on other grounds, Transamerica Mortgage Advisers, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir.1976) (breach of agreement to sell securities did not constitute violation of § 10(b) because required nexus between fraud and an actual sale was lacking; plaintiffs, being deprived of opportunity to purchase securities, could not demonstrate requisite causal connection between a sale or purchase of their own and any fraud by defendants); Morrow v. Schapiro, 334 F.Supp. 399, 402-03 (E.D.Mo. 1971) (corporate insiders' persuasion of shareholder not to sell stock, when such sale would have been contrary to insiders’ interests, was not a § 10(b) violation because no actual purchase or sale took place in connection with the alleged fraud; \"However deceitful and false the misrepresentations may have been, the plaintiff must be a purchaser or a seller ... in a purchase or sale as to which there is a claim of fraud”); Baum v. Phillips, Appel & Walden, Inc., 648 F.Supp. 1518, 1526 (S.D.N.Y.1986) (merely being induced to retain securities does not constitute violation of Rule 10b-5), aff’d, Asch v. Phillips, 867 F.2d 776 (2d Cir.), cert. denied, 493 U.S. 835, 110 S.Ct. 114, 107 L.Ed.2d 75 (1989); Sacks v. Reynolds Sec., Inc., 593 F.2d 1234, 1241 (D.C.Cir.1978) (Blue Chip Stamps does not permit recovery under Rule 10b-5 when alleged fraud causes an investor to retain ownership in securities); Goldman v. A.G. Becker, Fed.Sec.L.Rep. p. 99, 172, 1983 WL 1302 (S.D.N.Y. 1983) (\"All of the decisions which plaintiff cites in support of the contention that he has standing to sue under Rule 10b-5 as an aborted seller antedate the Supreme Court’s express adoption of the Birnbaum" }, { "docid": "18727682", "title": "", "text": "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir.1980) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 99, 101-02, 2 L.Ed.2d 80 (1957)). The sufficiency of a complaint is a question of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). B. Section 10(b) and Rule 10b-5 Claims. When considering a Section 10(b) and Rule 10b-5 claim for relief, the court should liberally construe that claim in order to effectuate the policies underlying the federal securities laws. Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1313 (9th Cir.1985). Appellants argue that their Section 10(b) and Rule 10b-5 claims arose (1) out of the 1977 compromise, (2) from the creation of the ESOT, (3) out of K & K’s false and misleading registration statement, and (4) as a result of the alleged “forced sale” which occurred when the rights to the shares of K & K stock which they benefically owned were transferred to the trustee. The district court dismissed appellants’ complaint on the basis that they did not have standing to sue. In order for a private plaintiff to have standing to bring an action under Section 10(b) or Rule lob-5, the plaintiff must have been a purchaser or seller of the securities. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 731, 95 S.Ct. 1917, 1923, 44 L.Ed.2d 539 (1975); Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463 (2d Gir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). However, a contract to purchase or sell securities satisfies this standing requirement. Blue Chip Stamps, 421 U.S. at 750-51, 95 S.Ct. at 1932. Appellants present three arguments in support of a finding that a contract for a purchase and sale existed. 1977 Compromise. Appellants first argue that the 1977 Compromise constituted a contract for purchase and sale" }, { "docid": "23270208", "title": "", "text": "on trial. We, of course, intimate no opinion as to the truth of his allegations. The court below, citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), held that Kirshner lacks standing to assert a private cause of action under § 10(b) of the 1934 Act, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 240.-10b-5, promulgated thereunder. We disagree. To be sure, in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), affirming dismissal of a derivative action against a director for violation of § 10(b) where the director had sold his shares in the corporation to an outside purchaser, we stated that § 10(b) and Rule 10b-5 “extended protection only to the defrauded purchaser or seller,” id. at 464. Since its promulgation in 1952, the Birnbaum rule has been adhered to consistently in this circuit; see International Controls Corp. v. Vesco, 490 F.2d 1334, 1346 n. 16 (2nd Cir.), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974). We have, however, recognized that a shareholder who has not purchased or sold shares may bring a derivative action under § 10(b) against corporate insiders on behalf of the defrauded corporation if the corporation has bought or sold securities. Schoenbaum v. First-brook, 405 F.2d 215, 219 (2d Cir. 1968), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); Ruckle v. Roto American Corp., 339 F.2d 24, 27-28 (2d Cir. 1964). And in approving the Birnbaum rule in Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539, the Court took cognizance of this interpretation of the rule, id., at 748-49. We think the beneficiary of a pension trust, like the shareholder in a derivative suit, has standing to attack securities frauds perpetrated or threatened by the trustees of his fund. A number of courts have taken the view that a trust beneficiary may sue under Rule 10b-5. See, e." }, { "docid": "16486529", "title": "", "text": "prejudice. Plaintiffs now appeal the district court’s Rule 12(b)(6) dismissal of their § 10(b) and Rule 10b-5 claims. ANALYSIS We review de novo a district court’s dismissal of a plaintiff’s claims pursuant to Fed. R.Civ.P. 12(b)(6). See In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir.1993). I. STANDING A. The Investor Class Section 10(b) and Rule 10b-5 prohibit deceptive practices “in connection with the purchase or sale of any security.” In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court interpreted this restriction to limit relief under Rule 10b-5 to plaintiffs who had either purchased or sold securities. The plaintiffs in Blue Chip alleged that the offer- or had made misleadingly pessimistic statements in connection with its offering, causing the plaintiffs to forego purchasing shares at bargain prices. The Court noted that the limitation of § 10(b) to deception “in connection with the purchase or sale of any security” was significantly narrower than § 17(a) of the 1933 Securities Act, which reaches fraud “in the offer or sale of securities.” See id. at 733-34, 95 S.Ct. at 1924-25 (emphasis added). After discussing the additional policy reasons for limiting Rule 10b-5 relief to purchasers and sellers, the Court held that the plaintiffs were not entitled to maintain their action. Id. at 749, 95 S.Ct. at 1931-32. The defendants here argue that the Investor Class is in the same position as the plaintiffs in Blue Chip: they neither purchased nor sold any of the Units in issue. Section 3(a) of the 1934 Act, however, defines a “purchase” or “sale” of securities to include “any contract” to purchase or sell a security. See Blue Chip, 421 U.S. at 750-51, 95 S.Ct. at 1932-33. The Investor Class claims that it had contracts to purchase securities, and that its members accordingly have standing as “purchasers” to bring this action under § 10(b) and Rule 10b-5. We conclude that the members of the Investor Class did not have binding contracts to purchase securities from Stratosphere sufficient to confer standing under § 10(b). In" }, { "docid": "18390969", "title": "", "text": "securities laws. Since the complaint alleges fraudulent practices in violation of the securities laws, the narrow issue presented by this motion and left open by the court in Newman is whether O’Connor, as a party to whom no fiduciary duty was owed, nevertheless has standing to assert a civil claim for damages allegedly resulting from defendants’ breaches of fiduciary duties owed to other persons. We hold that it does. While O’Connor was owed no fiduciary duties by the insiders of the corporation, it is a seller of a “security” within the meaning of Rule 10b-5. Section 3(a)(13) of the Securities Exchange Act provides that “[t]he terms ‘buy’ and ‘purchase’ each include any contract to buy, purchase, and otherwise acquire.” Section 3(a)(14) provides that “[t]he terms ‘sale’ and ‘sell’ include any contract to sell or otherwise dispose of.” For the purposes of Rule 10b-5, “the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as ‘purchasers’ and ‘sellers’ of securities . . . because the definitional provisions of the 1934 Act themselves grant them such a status.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 751, 95 S.Ct. 1917, 1932-33, 44 L.Ed.2d 539 (1975). Thus, the fact that O’Connor is an options trader, rather than a shareholder of a corporation, is not in itself a bar to this suit. In addition, O’Connor is within the scope of the statute’s and the Rule’s intended beneficiaries. Section 10(b) makes it “unlawful for any person ... to use or employ, in connection with the purchase or sale of any security .. . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe . .. for the protection of investors.” Rule 10b-5 is similarly framed to ban fraudulent or deceptive practices “in connection with the purchase or sale of any security.” Furthermore, O’Connor alleges direct injury as a result of the fraudulent practices and alleges that it actually sold securities in connection with the alleged fraudulent practices. O’Connor has therefore satisfied the standing requirements" }, { "docid": "9639657", "title": "", "text": "no such causal connection where the misstatement or omission occurred after the purchase. See duPont v. Wyly, 61 F.R.D. 615, 625 (D.Del.1973). Hence, where it is alleged that a misrepresentation or omission by Karcagi induced the “mere retention” of the discretionary accounts by the Troyers, no claim under Rule 10b-5 can be asserted in connection with the purchase of the investment contracts governing the funds already in these accounts. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Clinton Hudson & Sons v. Lehigh Valley Cooperative Farms, Inc., 73 F.R.D. 420, 425-26 (E.D.Pa.1977), aff’d 586 F.2d 834 (3d Cir. 1978); Ingenito v. Bermec Corporation, 376 F.Supp. 1154, 1174 (S.D.N.Y.1974). On the other hand, where it is alleged that a misrepresentation or omission occurred before one of the purchases of a discretionary account, as defined above, and that this fraud induced the purchase, a Rule 10b-5 claim upon which relief can be granted against Karcagi is stated. Defendants’ motions pursuant to Rule 12(b)(6) Fed.R.Civ.P. are, therefore, denied as to the Rule 10b-5 claim against Karcagi. As an alternative to the investment contract claim just discussed, the Troyers assert a Rule 10b-5 cause of action against Karcagi based upon fraud in connection with purchases or sales of the underlying securities traded by Karcagi in the discretionary accounts. The Rule 10b-5 claim for Karcagi’s alleged omissions relating to his self-dealing in the transactions listed in Exhibit “B” to the Amended Complaint is sufficiently alleged, but the allegations as to misrepresentations and omissions relating to Karcagi’s performance or intentions as the Troyers’ investment manager do not adequately state a Rule 10b-5 claim. This distinction obtains because of the nature of the “in connection with” requirement. The alleged misrepresentations concerning Karcagi’s investment performance and his intentions affected the investors’ confidence in a person selected by them to be their fiduciary rather than influencing their decision to purchase or sell particular securities. The purpose of Rule 10b-5, i. e., to promote “the maintenance of free and open securities markets nurtured in a climate of fair dealing”is not" }, { "docid": "12561801", "title": "", "text": "17 C.F.R. § 240.10b-5, prohibits misrepresentations “in connection with the purchase or sale of any security.” A plaintiff who has neither purchased nor sold securities in reliance on a misrepresentation may not maintain a private action under Rule 10b-5 for money damages. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 755, 95 S.Ct. 1917, 1934-35, 44 L.Ed.2d 539 (1975) (following Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952)). Defendants argue that the policy considerations which supported the Supreme Court’s holding in Blue Chip Stamps are persuasive in the common law context. The Supreme Court apparently disagrees. In Blue Chip Stamps, the Supreme Court reviewed the criticism of the commentators and the Securities and Exchange Commission that a purchase or sale requirement for a private 10b-5 claim constitutes “an arbitrary restriction which prevents some deserving plaintiffs from recovering damages which have in fact been caused by violations of 10b-5.” Id. 421 U.S. at 738, 95 S.Ct. at 1926-27 (citations omitted). The Supreme Court conceded that it “had no doubt that this is indeed a disadvantage of the Birnbaum rule.... Obviously this disadvantage is attenuated to the extent that remedies are available to nonpurchasers and nonsellers under state law.” Id. 421 U.S. at 738 & n. 9, 95 S.Ct. at 1927. Thus, although the Supreme Court went on to affirm the Birnbaum rule in the 10b-5 context, it recognized that the rule was sometimes unjust and that the lack of a common law Birnbaum rule was a salutary antidote to that injustice. A close reading of Blue Chip Stamps reveals, moreover, that the type of fraud alleged in this case is within the Supreme Court’s understanding of actionable common law fraud. Blue Chip Stamps involved a class of plaintiffs who failed to purchase stock, allegedly in reliance on defendants’ representations. 421 U.S. at 727-28, 95 S.Ct. at 1921. The Supreme Court pointed out that, “in the ordinary case of deceit,” a misrepresentation which induces a failure to purchase or sell is as actionable as one which" }, { "docid": "4109313", "title": "", "text": "the plaintiffs were sellers or purchasers for the purpose of bringing suit in this case under the decision of the Supreme Court in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). In Blue Chip, the court held: “Blue Chips, supra, involved the offerees of a stock offering made pursuant to an antitrust consent decree. The offerees had neither purchased nor sold any of the offered shares and the court determined that the rule had been clearly stated in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952) that a suit under 10b-5 cannot be brought without the plaintiff having bought or sold or having contractual rights for purchase or sale of securities.” The Supreme Court , specifically said, however, at page 421 U.S. 751, 95 S.Ct. at page 1932: “Unlike respondent, which had no contractual right or duty to purchase Blue Chip’s securities, the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as ‘purchasers’ or ‘sellers’ of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to ‘purchasers’ or ‘sellers’, but because the definitional provisions of the 1934 Act themselves grant them such a status.” It would seem that this would be sufficient since the convertible debentures constitute a contract permitting the holder of the same to convert into common stock of the B&O and thus there is a contract right to acquire B&O stock which should be held as a contract of purchase or sale under 10b-5. The defendants relied strongly upon Broad v. Rockwell International Corp., (N.D.Tex.1977 Federal Securities Law Reporter, ¶ 96193), which has since been affirmed in this respect by the Court of Appeals for the Fifth Circuit at 614 F.2d 418 (March 24, 1980). When this matter was first presented in this case, I specifically declined to follow Broad v. Rockwell and held that the best exposition in this area relative to rights of convertible debenture holders was contained in the decision of Judge Tenney" }, { "docid": "22176789", "title": "", "text": "issue of material fact to support his claims. However, many, of the alleged class members’ claims would have been barred for failure to state a claim on which relief may be granted, had the district court reached the issue. We make this observation because at oral argument, both par ties maintained that Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), had no relevance to the class action in this case. It is apparent from plaintiff's complaint that the alleged class includes all persons who purchased BTX securities from January 1, 1987 to September 30, 1988. Persons who purchased securities prior to the distribution of the May 13, 1987 prospectus could not possibly have been induced to invest in BTX by that prospectus. At most, they could have been induced to retain their shares by relying on that prospectus. It is well established that mere retention of securities in reliance on material misrepresentations or omissions does not form the basis for a § 10(b) or Rule 10b-5 claim. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Ahrahamson v. Fleschner, 568 F.2d 862, 868 (2d Cir.1977) (fraudulent inducement to retain securities is not a Rule 10b-5 violation because it is not directly \"in connection with\" any purchase or sale), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), disapproved on other grounds, Transamerica Mortgage Advisers, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir.1976) (breach of agreement to sell securities did not constitute violation of § 10(b) because required nexus between fraud and an actual sale was lacking; plaintiffs, being deprived of opportunity to purchase securities, could not demonstrate requisite causal connection between a sale or purchase of their own and any fraud by defendants); Morrow v. Schapiro, 334 F.Supp. 399, 402-03 (E.D.Mo. 1971) (corporate insiders' persuasion of shareholder not to sell stock, when such sale would have been contrary to insiders’ interests, was not" }, { "docid": "3161965", "title": "", "text": "have involved fraud or to have been made in connection with the purchase or sale of securities, this third claim is not actionable under the antifraud provisions of the Exchange Act. On this point, the Court agrees with the defendants. In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court adopted the Birnbaum rule that only persons who are actual purchasers or sellers of a security have standing to bring claims for damages under section 10(b) or Rule 10b-5. Id. at 731-49, 95 S.Ct. at 1923-32. There must be a purchase or sale directly involved. See, e.g., Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303, 1318 (E.D.Va.1981) (“It is clear that any damages plaintiffs may have suffered [by reason of defendants’ refusal to sell plaintiffs’ shares upon direction] did not occur ‘in connection with the purchase or sale of any security’ in the Blue Chip Stamps sense of that phrase.”). Furthermore, as the Second Circuit observed in Shemtob v. Shearson, Hammill & Co., 448 F.2d 442 (2d Cir.1971), in which the plaintiffs claimed that the defendant failed to sell their stock promptly as directed: [Plaintiffs’ claim is nothing more than a garden-variety customer’s suit against a broker for breach of contract, which cannot be bootstrapped into an alleged violation of § 10(b) of the Exchange Act, or Rule 10b-5, in the absence of an allegation of facts amounting to scienter, intent to defraud, reckless disregard for the truth, or knowing use of a device, scheme or artifice to defraud. Id. at 445. In the instant case, Kravetz has not alleged that Brukenfeld or Gould acted with intent to deceive, manipulate or defraud when Brukenfeld refused to liquidate the plaintiff’s account. Thus, Kravetz’s claim is nothing more than a suit for breach of contract, and he has not made out a cause of action under section 10(b) or Rule 10b-5. See id.; Haynes v. Anderson Strudwick, Inc., supra, 508 F.Supp. at 1318. Cf. Cortlandt v. E.F. Hutton, Inc., 491 F.Supp. 1, 4 (S.D.N.Y.1979) (a claim for violation of a" }, { "docid": "23366063", "title": "", "text": "The representations allegedly were made to induce UIH to purchase the option. As such, the misrepresentations were made to influence UIH’s investment decision and were made in connection with the purchase or sale of a security. See SEC v. Jakubowski, 150 F.3d 675, 679 (7th Cir.1998); Angelastro v. Prudential-Bache Secs., Inc., 764 F.2d 939, 943 (3d Cir.1985). Wharf describes UIH’s 10b-5 claim as involving a mere allegation that Wharf misrepresented its intent to sell UIH securities or a simple dispute between Wharf and UIH over its rights to purchase stock. Wharf claims such disputes are outside the scope of the federal securities laws. Wharf relies heavily on Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). In Blue Chip Stamps, the Court held that only actual purchasers or sellers of securities, or those designated by the Securities Exchange Act as purchasers or sellers, have standing to bring a private cause of action for a 10b-5 violation. Id. at 749, 95 S.Ct. 1917. Here, UIH was an actual purchaser of a security as it purchased the option from Wharf on October 8, 1992. Blue Chip does not preclude UIH’s 10(b)(5) claim. See id. at 751, 95 S.Ct. 1917 (“the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as ‘purchasers’ or ‘sellers’ of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to ‘purchasers’ or ‘sellers,’ but because the definitional provisions of the 1934 Act themselves grant them such a status”). Further, we disagree with Wharfs assertion that misrepresentations regarding intent to sell securities or disputes over a right to purchase stock necessarily are outside the scope of Rule 10b-5. Courts have noted that fraud in the purchase or sale of a security includes entering into a contract to sell a security with a secret reservation not to fully perform the contract. See In re Phillips Petroleum Secs. Litig., 881 F.2d 1236, 1245 n. 13 (3d Cir.1989); Luce v. Edelstein, 802 F.2d 49, 56 (2d" }, { "docid": "10977543", "title": "", "text": "To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5. At the threshold, defendants maintain that plaintiffs do not fall within the ambit of 10b-5 protection because the transaction complained of was not a “purchase or sale of any security.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). A careful reading of the statute and of Blue Chip does not support this view. Section 3(a)(10) of the ’34 Act, 15 U.S.C. § 78c(a)(10), includes in the definition of a “security” “any . . debenture.” Subsection (13) of the same section states: “The terms ‘buy’ and ‘purchase’ each include any contract to buy, purchase, or otherwise acquire.” Subsection (14) defines the terms “sale” and “sell” to “include any contract to sell or otherwise dispose of.” The Blue Chip Court specifically acknowledged that holders of contractual rights to purchase have standing to sue, in contradistinction to the Blue Chip plaintiffs who were merely nonpurchasing offerees. “Unlike respondent, which had no contractual right or duty to purchase Blue Chip’s securities, the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as ‘purchasers’ or ‘sellers’ of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to ‘purchasers’ or ‘sellers,’ but because the definitional provisions of the 1934 Act themselves grant such a status.” Blue Chip, supra, 421 U.S. at 751, 95 S.Ct. at 1932 (emphasis added). In the" }, { "docid": "23532301", "title": "", "text": "company. In particular, they have alleged violations of SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, which prohibits fraud “in connection with the purchase or sale of any security.” On appeal, IDB has also alleged violations of § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a). Because the claim under § 17(a) was not presented to the district court, however, we will consider only the alleged 10b-5 violations here. Beyond the initial requirement of two predicate acts, a plaintiff must meet a number of additional requirements. In this case, IDB has failed two of them: it has not suffered a legally cognizable injury from the predicate acts of securities fraud, and the predicate acts do not constitute a pattern of racketeering activity. III. The facts alleged by IDB may afford it a common law claim based on fraud, breach of contract, or perhaps another cause of action, for the recovery of the improper reimbursement. A cause of action for violation of federal securities laws is another matter. The outside investors may well have such an action. Because IDB’s injury did not result from its purchase or sale of securities, it has suffered no injury cognizable under Rule 10b-5. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Because IDB based its RICO claim on a Rule 10b-5 predicate offense, the district court properly applied the standing requirements of that Rule in dismissing the action. IDB did not purchase any of its own stock. Nor is fraud claimed by the corporation in its capacity as a seller. Although IDB did sell its stock in the initial offering, it has not alleged that it was injured by virtue of the sale or that it was fraudulently induced to sell its stock. Rather, it complains that it was induced to repay Zep kin and Grossman — a fraud that occurred after the stock offering had already taken place. Thus, IDB brings its claim as neither a purchaser nor a seller. In Blue Chip Stamps, the Supreme Court held that only actual purchasers or" }, { "docid": "673129", "title": "", "text": "that an action under Section 10(b) and Rule 10b-5, which relies on a contract for the purchase or sale of securities to satisfy the “purchaser-seller” jurisdictional requirement of the Act, is not deficient as a matter of law simply because the contract relied on for the purposes of satisfying this requirement is oral rather than written. In particular, neither the Court nor the parties have found any authority directly supporting the proposition that a contract must satisfy the statute of frauds in order to support a 10b-5 action. The requirement that a plaintiff be either a purchaser or seller of securities in order to bring a private action under Section 10(b) and Rule 10b-5 has recently received the imprimatur of the Supreme Court. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539, 43 U.S.L.W. 4707 (U.S. June 9, 1975). However, the Court did not purport to overrule, in fact it specifically recognized the established interpretation of the requirement to the effect that a contract for the purchase or sale of securities will satisfy this requirement. Id. at 748, 95 S.Ct. at 1931, 44 L.Ed.2d at 556, 43 U.S.L.W. at 4715. The Court in Manor Drug did not have occasion to discuss the type of contract which must exist in order to meet the “purchaser-seller” requirement. Surprisingly, the efforts of the parties and the Court here indicate that there is little case law dealing with this point. The only authority found by the Court directly discussing the issue is a statement by Professor Louis Loss in the 1961 edition of his text on Securities Regulation. He states: “If X resorts to a fraudulent device to escape a contractual obligation to buy Y’s securities, the device would seem no less unlawful under Rule 10b-5 because the contract later turned out to be unenforceable on account of some illegality on the part of Y. Just as not every breach of contract violates the rule, it is equally true that there can be a violation of the rule, without an enforceable contract.” 3 L. Loss, Securities" }, { "docid": "22418365", "title": "", "text": "reflected in the draft agreements made it clear that the obligations of both SCM and Muller were contingent upon execution and delivery of the formal contract documents. See Brause v. Goldman, 10 A.D.2d 328, 199 N.Y.S.2d 606 (N.Y.App.Div.1960) aff'd, 9 N.Y.2d 620, 210 N.Y.S.2d 225, 172 N.E.2d 78 (1961). E. SECURITIES FRAUD Finally, plaintiffs urge us to reinstate their claim for violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983), promulgated thereunder. True, the district court dismissed the securities fraud count by erroneously relying on the “sale of business” doctrine, which although adopted in other circuits, see Frederiksen v. Poloway, 637 F.2d 1147 (7th Cir.), cert. denied, 451 U.S. 1017, 101 S.Ct. 3006, 69 L.Ed.2d 389 (1981); Chandler v. Kew, Inc., 691 F.2d 443 (10th Cir.1977); King v. Winkler, 673 F.2d 342 (11th Cir.1982), has been rejected in this circuit, Golden v. Garafalo, 678 F.2d 1139 (2d Cir.1982); see also Seagrave Corp. v. Vista Resources, Inc., 696 F.2d 227 (2d Cir.1982); Coffin v. Polishing Machines, Inc., 596 F.2d 1202 (4th Cir.) cert. denied, 444 U.S. 868, 100 S.Ct. 142, 62 L.Ed.2d 92 (1979); Daily v. Morgan, 701 F.2d 496 (5th Cir.1983). Nevertheless, plaintiffs cannot recover for securities fraud, because they do not satisfy the “purchase or sale” requirement of Birnbaum v. Newport Steel, 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Plaintiffs were not and do not claim to be actual purchasers or sellers of SCM stock. They claim only that their right to sue under Rule 10b-5 arises from the alleged contract to sell the shares of the subsidiaries, and they rely on those cases in this circuit that have held that a plaintiff can sue for fraud connected with an oral contract for the sale of securities. See Desser v. Ashton, 408 F.Supp. 1174 (S.D.N.Y.1975), aff’d mem., 573 F.2d 1289 (2d Cir. 1977); Commerce Reporting Co. v. Puretec, Inc., 290 F.Supp. 715 (S.D.N.Y.1968). However, because we have concluded that SCM did not enter into" }, { "docid": "13044810", "title": "", "text": "was neither a purchaser nor a seller of a security, since he never owned stock in Elco or G&W. Defendants, therefore, contend that plaintiff is not within the class of persons protected by Section 10(b) of the Securities Exchange Act of 1934. Whatever uncertainty there may have been as to the validity of the longstanding Birnbaum Rule (Birnbaum, v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), such has been put to rest by Blue Chips Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Blue Chips, in reaffirming the validity of Birnbaum, requires a plaintiff to be either a purchaser or seller of a security, in order to state a cause of action under. Section 10(b). The Court, however, expressly noted in Blue Chips, supra, at 750, 95 S.Ct. at 1932: A contract to purchase or sell securities is expressly defined by § 3(a) of the 1934 Act, 15 U.S.C. § 78c(a), as a purchase or sale of securities for. the purposes of that Act. Unlike respondent, who had no contractual right or duty to purchase Blue Chips securities, the holders of puts, calls, options and other contractual rights or duties to purchase or sell securities have been recognized as “purchasers” or “sellers” of securities for purposes of Rule 10b-5, not because of a judicial conclusion that they were similarly situated to “purchasers” or “sellers”, but because the definitional provisions of the 1934 Act themselves grant them such a status, (footnote omitted). The statute provides in Section 3(a) (13) that the terms “buy” and “purchase” each include any contract to buy, purchase or otherwise acquire. Similarly the terms “sale” and “sell” each include any contract to sell or otherwise dispose of a security. An option is a contract, and comes within the definition of a “security” under the statutes. Plaintiff held options to Elco stock. Under the merger plan, these were to be assumed by G&W and exchanged for G&W stock options. Upon the merger of a corporation, in which the" }, { "docid": "15243743", "title": "", "text": "that this court should not exercise pendent jurisdiction over the remaining state law claims. Each argument will be addressed seriatim. A. Section 10(b) Claim 1. Purchaser-Seller Requirement Defendants contend that plaintiffs have failed to state a claim under section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 because they were not actual purchasers or sellers of securities within the meaning of the Act. As a result, defendants argue that plaintiffs have no standing. The court does not agree. In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court held that a private cause of action for money damages under section 10(b) can be maintained only by a purchaser or seller of the stock in question. Our Court of Appeals has held that the sale of all or part of a business effectuated by a transfer of stock is a sale of a security under the federal securities acts. Ruefenacht v. O’Hallaran, 737 F.2d 320 (3d Cir.1984) aff'd, sub. nom. Gould v. Ruefenacht, 471 U.S. 701, 105 S.Ct. 2308, 85 L.Ed.2d 708 (1985). Thus, the issue presented here is whether plaintiffs are purchasers or sellers of a security having executed a contract that is later terminated before consummation of the transfer. Under the definitional section of the securities acts, “purchase” includes a contract to buy, and “sell” includes a contract to sell. 15 U.S.C. § 78c(a)(13) & (14). The Agreement, signed by the parties, provides a contractual right to purchase Aleo stock and sell Metropolitan stock. While this contractual right is conditioned upon, inter alia, the “due diligence” review, it is sufficiently definite for plaintiffs to maintain that they are purchasers or sellers for the purposes of section 10(b). See Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555 (2d Cir.1985) (contract for transfer of security may qualify as a sale under securities laws even if contract is never fully performed); See also Abrams v. Oppenheimer Government Securities, Inc., 737 F.2d 582 (7th Cir.1984) (contract to purchase and sell constitutes purchase or sale of securities for purposes" }, { "docid": "22418366", "title": "", "text": "Cir.1982); Coffin v. Polishing Machines, Inc., 596 F.2d 1202 (4th Cir.) cert. denied, 444 U.S. 868, 100 S.Ct. 142, 62 L.Ed.2d 92 (1979); Daily v. Morgan, 701 F.2d 496 (5th Cir.1983). Nevertheless, plaintiffs cannot recover for securities fraud, because they do not satisfy the “purchase or sale” requirement of Birnbaum v. Newport Steel, 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). Plaintiffs were not and do not claim to be actual purchasers or sellers of SCM stock. They claim only that their right to sue under Rule 10b-5 arises from the alleged contract to sell the shares of the subsidiaries, and they rely on those cases in this circuit that have held that a plaintiff can sue for fraud connected with an oral contract for the sale of securities. See Desser v. Ashton, 408 F.Supp. 1174 (S.D.N.Y.1975), aff’d mem., 573 F.2d 1289 (2d Cir. 1977); Commerce Reporting Co. v. Puretec, Inc., 290 F.Supp. 715 (S.D.N.Y.1968). However, because we have concluded that SCM did not enter into a contract, the plaintiffs fall outside even that enlarged class of persons who are protected by Rule 10b-5. Judge Sweet’s dismissal of plaintiffs’ securities fraud action is therefore affirmed. III. We conclude that the district court clearly erred in finding that a contract existed between the parties, that SCM was unjustly enriched, and that SCM owed a duty to negotiate in good faith with Muller and Reprosystem. Plaintiffs have not demonstrated any other basis for liability on the facts found below. Accordingly, the judgment of the district court is reversed on the contract claim, and affirmed insofar as it dismissed plaintiffs’ remaining claims." }, { "docid": "23132898", "title": "", "text": "knowledge that Continental was investing in the [securities] for their accounts” (Tenco). A. The Retained Securities The sales plaintiffs allege they would have made if they had received the information in question and revoked the trust or agency agreements, were never actually made. These retention claims are squarely within Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), in which thi Court adopted the rule of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), that only purchasers and sellers of securities are entitled to maintain actions for violation of § 10(b) and Rule 10b-5. The Birnbaum rule does not allow a remedy under Rule 10b-5 to persons “who allege that they decided not to sell their shares because of . a failure to disclose unfavorable material.” 421 U.S. at 737-738, 749, 754-755, 95 S.Ct. at 1926. It is irrelevant that, as plaintiffs argue, they ultimately sold their securities. A plaintiff may not bring his retention claim within the Birnbaum rule by selling his securities before he sues. The failures to disclose were not “in connection with” the ultimate sales. Cf. O’Hashi v. Varit Indus tries, 536 F.2d 849, 852 (9th Cir.), cert. denied, 429 U.S. 1004, 97 S.Ct. 538, 40 L.Ed.2d 616 (1976). B. Purchased Securities With respect to the purchases made by Continental, plaintiffs do not fit as neatly into the categories of persons to whom the Birnbaum rule denies the 10b-5 remedy. See Blue Chip Stamps, 421 U.S. at 737-738, 95 S.Ct. 1917. Continental argues, however, that it and not plaintiffs purchased the stock and, therefore, the Blue Chip rule applies. Although some judges and commentators have interpreted Blue Chip as Continental does, we are unable to say categorically that plaintiffs, on whose behalf Continental bought, were not in any sense purchasers of the securities. Nevertheless, we believe that considerations that helped to shape the decisions of the Supreme Court in Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977), and Blue Chip as well, require the same result here," }, { "docid": "1266133", "title": "", "text": "contrast various substantive provisions of state law with the substantive provisions of these federal rights of action. Accordingly, it appears that scienter, in its more rigorous sense, is not required under § 352-c as it ostensibly is in most situations under § 10(b) and Rule 10b-5. Compare N.Y.Gen.Bus.Law § 352-c(1)(b) and (1)(c), with Ernst & Ernst v. Hochfelder, supra, 425 U.S. at 193, 193-94 n. 12, 96 S.Ct. 1375 and United States v. Chiarella, 588 F.2d 1358, 1370-71 (2d Cir. 1978). Moreover, while § 10(b) and Rule 10b-5 have a “purchaser-seller” requirement, § 352-c creates liability regardless of whether a sale, or even negotiations, ultimately resulted between the parties. Compare Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975); Desser v. Ashton, 408 F.Supp. 1174 (S.D.N.Y.1975), aff’d mem., 573 F.2d 1289 (2d Cir. 1977) and 15 U.S.C. § 78c(a)(14), with N.Y.Gen.Bus.Law § 352-c(1). It is evident, therefore, that the implied cause of action under New York’s Blue Sky Law, if it indeed exists, is much broader than the-right of action recognized under § 10(b) and Rule 10b-5. Conversely, it is clear to my mind that the right of action under § 10(b) and Rule 10b-5 closely approximates the right of action afforded by common law fraud. See, e. g., Reno v. Bull, 226 N.Y. 546, 550, 124 N.E. 144 (1919). The Court of Appeals, Second Circuit, while applying Texas law and choosing between two state statutes of limitations to apply to a § 10(b) and Rule 10b-5 claim, has stated: [W]hen one state statute allowing securities fraud suits provides a broader cause of action . . . than does [§ 10(b) and] rule 10b-5 . . and at the same time has a longer statute of limitations . . . the statute of limitations associated with the broader [state] cause of action should be applied to [a federal securities fraud claim under § 10(b) and Rule 10b-5 rather than a shorter statute of limitations associated with a second state cause of action that is narrower in application]. Berry Petroleum Co. v. Adams" } ]

[ { "docid": "21508785", "title": "", "text": "therefore turn on the-question whether, at the time of imposing the-penitentiary sentence, the eourt may provide-for its future suspension after partial execution. No such power at common law has-been shown. Aside from statute, indefinite suspension of a part of a lawful sentence-would seem to labor under the same condemnation applying to a suspension of the whole. Ex parte United States, 242 U. S. 27, 37 S. Ct. 72, 61 L. Ed. 129, L. R. A. 1917E, 1178, Ann. Cas. 1917B, 355. The power, if it exists, must be derived from the source claimed in this sentence, to wit, the Act of March 4, 1925, establishing a system of probation.. The grant of power there is thus phrased: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it. shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation: provided, that the period of probation, together with any extension thereof, shall not exceed five years.” The power to suspend the imposition or the execution of sentences is not general, but exists only as defined by the statute. It arises when (1) the ends of justice and the best interest of the public, as well as of the defendant, will be subserved thereby, and (2) after an ascertainment of actual guilt of a crime not punishable by death or life imprisonment. The power again is not absolute, but the suspension must be accompanied" } ]

[ { "docid": "7997806", "title": "", "text": "v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (“[0]nly the most extraordinary showing of contrary intentions from [legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.”). In addition to the . plain meaning of the’ statutory language, we find Corpuz to be at odds with both experience and reason, since the decision is premised on the fungi-bility of probation and incarceration. However, probation and incarceration are like the proverbial apples and oranges. Although both are forms of punishment, their characteristics and objectives are different. These differences should be apparent to judges, as we are sure the practical realities of serving prison time rather than probation are apparent to criminal defendants. For both judges and defendants, there is a genuine distinction with a difference. Whatever subtle jurisprudential similarities exist between the two forms of punishment are no doubt irrelevant to most criminal defendants. Although the primary purpose of incarceration is punishment, the Supreme Court has long held that probation “was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932); see also Frad v. Kelly, 302 U.S. 312, 318, 58 5.Ct. 188, 192, 82 L.Ed. 282 (1937) (describing probation as “a system of tutelage”); Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) (probation is “concerned with rehabilitation, not with the determination of guilt” and “comes as an act of grace to one convicted of a crime”) (citation omitted). More recently, the Court described probation as a form of “conditional liberty.” Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); see also United States v. Beech-Nut Nutrition Corp., 925 F.2d 604, 608 (2d Cir.1991) (“Probation does not confer upon a convicted defendant the absolute liberty which ordinary citizens enjoy. Neither is a person on" }, { "docid": "4668214", "title": "", "text": "U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266; Title 18, U.S. C.A. § 724. A 'trial court has the power to place a defendant on probation effective after a subsequent offense, such as a completion of service of sentence on another charge. Frad v. Kelly, 302 U.S. 312, 315, 58 S.Ct. 188, 82 L.Ed. 282; Dillingham v. United States, 5 Cir., 76 F.2d 35, 36; Cooper v. United States, 5 Cir., 91 F.2d 195. A very careful reading of the court’s order will disclose that the defendant was not only placed on probation for a period of five years, conditioned on his future good behavior and on the further condition that he re-enter the United States army, but the order goes further and ex pressly orders that “said sentence of probation be suspended (italics ours) if defendant goes back into the army.” The record does not disclose how or in what way the trial court first obtained custody of the defendant and tried him for the offense on which he was adjudged guilty. It becomes manifest, however, that after his conviction and probation the United States Army could not, without a violation of the military laws, receive him back into the army unless, his probation was suspended. Paragraph 13b, (4) (c) Army Regulations 615-500: “(4) * * * “(c) A registrant on parole, conditional release, probation, or suspended sentence will not be accepted for induction until the proper authority either terminates civil custody effective upon his being inducted into the armed forces, or suspends civil custody during his period of military service. If a registrant is rejected upon the provisions of this paragraph, that fact will be indicated by using the sqitare in item No. 4 on the original and copy of DSS Form No. 218 (Certificate of Fitness). In addition a notation will be made on the duplicate copy only of Form No. 218 to show the reason for rejection.” The suspension of this probation paved the way for those in authority to permit the defendant to return to the Army, which he did. It becomes patent that" }, { "docid": "16328843", "title": "", "text": "U.S.C.A. § 724, in part, provided: “The courts of the United States having original jurisdiction of criminal actions, * * * shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; * * * .” Section 724, supra, in new Title 18 (Crimes and Criminal Procedure), § 3651, was revised to read, in part, as follows : “Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States, * * * may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., in part, provides : “-X- * * The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.” The Reviser’s notes to § 3651 state that the words omitted from the first sentence were eliminated because they were unnecessary. The notes indicate no purpose to change the meaning or effect of the original statute. Wherever a substantive change was intended the Reviser’s notes so indicate. Under § 1 of the original Probation Act the court could suspend the execution of the sentence and place the defendant on probation at any time after conviction and before the defendant commenced the service of the sentence. We are of the opinion it was not the intent of the Reviser to change the meaning or effect of § 1 as originally enacted, and that the time" }, { "docid": "11931162", "title": "", "text": "suspension of the term of imprisonment was void for two reasons: it was conditional, and, in effect, indefinite. The authority of a district court to suspend either the imposition or execution of sentence is derived from § 3651 of Title 18 U.S.C., which provides in pertinent part as follows: “ * * * any court having jurisdiction * * *, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” (Emphasis supplied). The same section provides that the period of probation “shall not exceed 5 years.” Where an offense of which a defendant has been convicted is punishable by fine, imprisonment or both, there are available to the court several alternatives, only one of which is pertinent here. Where the district court has, in addition to the imposition of permissible fines, sentenced the defendant to a term of imprisonment, .it may suspend the execution of the term of imprisonment, place the defendant on probation for a specified period, and prescribe the terms and conditions of that probation. The court may not, as it did here, suspend the execution of a term of imprisonment without placing the defendant on probation for a specified period. Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702 (1933); Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Graham, 325 F.2d 922 (6th Cir. 1963). A judgment which purportedly suspends the execution of a term of imprisonment indefinitely lacks finality and is therefore a nullity. Ibid. The judgment in this case is subject to a further objection. The suspension of the execution of a term of imprisonment which is made conditional upon payment of the fines imposed is not authorized by the statute. Horton v. United States, 151 F.2d 406 (5th Cir.1945). Those portions of the judgments relating to the suspension of sentence must be vacated and corrected. The judgments of conviction, except that relating to Sams on the second count of the indictment, will be affirmed." }, { "docid": "4786782", "title": "", "text": "stood before the court for sentence on two indictments, consolidated for trial, carrying an aggregate maximum punishment of fifteen years; (2) that he was sentenced on one of the indictments, No. 8506, to serve five years; (3) that on the other, No. 8507, in accordance with established practice, Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282, the imposition of sentence was suspended, and he was placed on probation to commence after the service of the first five year sentence; (4) that within the period of probation so fixed, and upon his plea of guilty to its violation, the probation was revoked, and he was sentenced to serve five years; (5) that lie did not appeal from that judgment; and (6) that he now seeks not to reverse it for error, but to vacate it as invalid. It is quite plain that the sentence was not invalid, that the motion to vacate it was properly denied, and that the judgment appealed from should be affirmed. Taken from the transcript of the record which is not complete, as supplemented by the briefs of appellant and the United States, those are the facts: On February 11, 1988, appellant appeared before the trial court and pleaded guilty to two indictments which had been consolidated for trial, No. 8500 and No. 8507. On Indictment No. 8507, charging violation of Title 18 U.S.O.A. § 415, National Stolen Properly Act, defendant was sentenced to five years imprisonment effective under Sec. 709a, 18 U.S.O.A., “as of defendant’s receipt at the penitentiary or jail for service of the sentence.” On Indictment No. 8506, charging violation of Title 18 U.S.O.A. § 408e, Unlawful Flight Act, the imposition of sentence was suspended and “defendant was ordered placed on probation after serving sentence imposed in No. 8507, conditioned upon his not again violating any law, state or federal, during the period of said suspense and probation, which period is for the term of ten years”. It was further provided, “The probation is to begin when the said defendant has served the term imposed in cause No. 8507.” After" }, { "docid": "22129975", "title": "", "text": "Code: “After a finding of guilt in such a criminal proceed-' ing as the instant case, in which neither imprisonment in a jail or penitentiary nor a fine is imposed, is an order by the district court, that the convicted man ‘be placed on probation for the period of five (5) years’ a final decision reviewable on appeal by this circuit court of appeals?” The federal probation law authorizes a district judge “after conviction or after a plea of guilty or nolo contendere ... to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms” as seem wise. 18 U. S. C. § 724. In Berman v. United States, 302 U. S. 211, we held that when a court had imposed a sentence and then suspended its execution, the judgment was final and would support an appeal. The question here is whether the judgment is equally final when the imposition of sentence itself is suspended and the defendant subjected to probation. The government concedes that this question should be answered in the affirmative. It has often been said that there can be no “final judgment” in a criminal case prior to actual sentence, Miller v. Aderhold, 288 U. S. 206, 210; Hill v. Wampler, 298 U. S. 460, 464, and this proposition was restated in Berman v. United States, 302 U. S. 211, 212. In applying this general principle to a situation like that of the instant case, the Second and Fourth Circuit Courts of Appeals have concluded that they lacked jurisdiction to hear an appeal from an order placing a defendant on probation without first imposing sentence. United States v. Lecato, 29 F. 2d 694, 695; Birnbaum v. United States, 107 F. 2d 885. The Fifth Circuit appears to take the opposite view. Nix v. United States, 131 F. 2d 857. The “sentence is judgment” phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. Thus" }, { "docid": "4690574", "title": "", "text": "time between the imposition of the separate sentences. Consider now the statute granting jurisdiction to suspend sentences and g-rant probation, Title 18, Section 724, U.S.C. 18 U.S.C.A. § 724. The statute provides that “The courts of the United States having original jurisdiction of criminal actions * * * shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best. * * *” No other statute modifies or takes away from this jurisdiction. Neither expressed or implied is there any such exception as this — “Provided, however, the court may not suspend the execution of a sentence for one crime or offense and grant probation if the sentence as to another crime or offense is not suspended.” On the contrary the statute is clear that the power apper tains to the execution of the sentence for “any” crime as to which there has been a conviction or a plea of guilty. The power may be separately exercised for each separate crime, whether charged in separate indictments or (what is the same thing) in separate counts of the same indictment. One exception only is expressed in the statute. If the crime charged is one punishable by death or life imprisonment then a sentence for that crime cannot be suspended. Expressio unius exclusio alterius est. The familiar rule requires that the statute be not interpreted as excluding the power with reference to any crime merely because it has not been exercised with reference to another crime. I think that the Circuit Court of Appeals for the Second Circuit in reality (although not expressly) receded from the position it took in the Greenhaus case when later (May 10, 1937) it handed down its decision in Kelly v. U. S. ex rel. Frad, 89 F.2d 866. There separate crimes were charged although they were connected in purpose and motive, just as" }, { "docid": "13713681", "title": "", "text": "however, no invalidity in the sentence placing the appellant on probation. Hollandsworth v. United States, 4 Cir., 34 F.2d 423. Section 1 of the Probation Act, 18 U.S.C.A. §§ 724 to 727, expressly directs the judge, when exercising the power to suspend sentence and place the defendant upon probation, to fix such terms and conditions as he may deem required. Fixing the terms and conditions of probation is a judicial act which may not be delegated. This does not mean, however, that the court may not adopt and incorporate into a sentence terms and conditions of probation, recommended to it by an administrative agency of the government, and to impose such further terms and conditions as to it may seem best. Undoubtedly it is the better practice for the court to announce specifically the terms and conditions under which probation is granted. It is, however, universal practice, everywhere understood, that the minimum requirement for the continuance of judicial grace is that the defendant shall not, during the probationary period, again commit a felony. This, every defendant undoubtedly understands when seeking or accepting probation. Without such condition the very term “probation” is meaningless, and the appellant does not contend that he was in any doubt as to it being a condition of the grant. Certainly, the appellant knew that he could not commit another crime and retain his probationary status. The case would bear a different aspect had the appellant’s probation been revoked for some minor infraction of the terms or conditions upon which probation was based. The contention that the probation was invalid because of its indefinite duration, must also be rejected. While it is undoubtedly better practice for the sentence to incorporate specifically the period of probation, it is beyond the power of the court to impose probation for a period beyond the term for which a maximum sen- tence could have been imposed. Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282; Miller v. Aderhold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702. This sets a definite limit to the probationary period. The contention" }, { "docid": "11949115", "title": "", "text": "F.Supp. at page 599): “The Probation Act of 1925, 18 U.S.C. § 724, 18 U.S.C.A. § 724, provides that ‘The courts of the United States having original jurisdiction of criminal actions, * * * shall have power, aftef conviction * * * for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best. * * * ’ “It will be observed that the power to suspend the execution of sentence given by the act is not expressly limited to the time of imposition of sentence or to the term within which sentence is imposed. On the contrary it seems clear that it was the intention of the Congress in enacting this remedial and humanitarian legislation that the power to suspend the execution of a sentence should continue until its execution has actually commenced. It has been so held by all four Circuit Courts of Appeals in which the question has arisen. Nix v. James, 9 Cir., 7 F.2d 590; Kriebel v. United States, 7 Cir., 10 F.2d 762; Evans v. District Judge, 6 Cir., 12 F.2d 64; Ackerson v. United States, 2 Cir., 15 F.2d 268. It is true that the Supreme Court held in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, that the power is gone once execution of the sentence commences. It was hot suggested in that case, however, that the power must be exercised at the time of imposition of sentence or within the term. On the contrary Chief Justice Taft took occasion to point out that the rulings of the four Circuit Courts of Appeals to which I have referred were not inconsistent with his opinion. “It must be remembered, as Judge Anderson pointed out in Kriebel v. United States, supra, that the rule laid down in United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129, to the effect that a federal district court has no" }, { "docid": "12214437", "title": "", "text": "which could have been imposed would have expired. Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282. The practical difference between action .taken on an alleged violation of probation during the probation period and action taken thereafter but within the allowed time is one of procedure. In the first situation the probationer may be brought into court either with or without the issuance of a warrant but in the second instance a warrant is required. Kaplan v. Hecht, 2 Cir., 24 F.2d 664. For the purpose of the supervisory control of a probationer by the court, the statute extends the period of permissive action beyond the period set for probation whenever that does not equal in length the maximum time for which sentence might have been imposed. Hollandsworth v. United States, 4 Cir., 34 F.2d 423; United States ex rel. Grossberg v. Mulligan, 2 Cir., 48 F.2d 93. It is true that the term “suspension of execution of sentence” was not included in the statute which provides that “the court may revoke the probation or the suspension of sentence” but the statute covers both the situation where probation has been granted after sentence has been imposed and its execution suspended and that where it has been granted without the actual imposition of any sentence as where there has been a suspension of the sentence itself. Scalia v. United States, 1 Cir., 62 F.2d 220. An incidental question has been raised as to the manner in which the hearing was conducted. The appellant requested further delay, though he had already had ample notice, on the ground of the inability to be then present of the particular attorney he had employed to represent him. The court, however, declined to grant an adjournment but did appoint an attorney who was present to represent the appellant and that attorney did so. This was a proper exercise of judicial discretion. The evidence of the violations of probation consisted of the testimony of the appellant given at three separate trials of a criminal action and the fact that he hád committed perjury at" }, { "docid": "15848765", "title": "", "text": "best interest of the public as well as the defendant will bo served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” . The first paragraph of the Act, so far as pertinent, provided: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia. when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid.” . “Rule 35. Correction or Reduction of Sentence. “The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.” . It is stated in Kirk v. United States, 9 Cir., 185 F.2d 185, 188, which is hereinafter referred to, that the writer of this opinion was a member of the Advisory Committee having to do with the Revision of Title 18. That is incorrect. He was on an advisory committee which participated in the Revision of Title 28 U.S.C. This is unimportant, but is mentioned in the interest of accuracy. . In United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354, which involved the question of the power of a District Court" }, { "docid": "15848760", "title": "", "text": "U.S.C.A. It is apparent, therefore, that Rule 35 does not relate to the time within which the power of the court to suspend sentence for probation purposes may be exercised. Probation is in no sense a reduction of sentence. It is discipline under supervision, without incarceration, and is intended for those offenders who can, with safety to the public, be left at large after conviction and who may honestly and reasonably be believed to be susceptible of reformation. We think, however, that Rule 35 properly may be regarded as indicating the time within which the Supreme Court of the United States believes that a criminal case, after conviction, should be finally disposed of by a District Court. A criminal action is terminated by the final judgment entered upon a plea or a verdict of guilty. Frad v. Kelly, 302 U.S. 312, 317, 58 S.Ct. 188, 82 L.Ed. 282. Final judgment means sentence, and sentence means final judgment. Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702; Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283; Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204; and compare Toyosaburo Korematsu v. United States, 319 U.S. 432, 434-435, 63 S.Ct. 1124, 87 L.Ed. 1497. We think it is not strictly accurate to speak of the successive terms or periods of imprisonment which a defendant is sentenced to serve under a final judgment, such as that in suit, as though they were, for purposes of executive custody, separate and distinct judgments or sentences entered upon separate convictions. A judgment and sentence, in our opinion, is no less a final disposition of a criminal case because it imposes successive periods of imprisonment. Realistically, a valid cumulative sentence made up of successive periods of imprisonment totaling a certain number of years is, for purposes of custody, the exact equivalent of a general sentence of imprisonment for the same number of years. See and compare Neely v. United States, 4 Cir., 2 F.2d 849, 852-853; United States v. Daugherty, 269" }, { "docid": "15848764", "title": "", "text": "sentence. Barnes v. United States, 8 Cir., 197 F.2d 271, 273. It is to be hoped that, in view of our disagreement with the decision of the Court of Appeals for the Ninth Circuit in Kirk v. United States, supra, the Supreme Court will grant certiorari, since the importance of having substantial uniformity throughout the circuits with respect to the granting of probation after a defendant has commenced the service of sentence is obvious. The defendant may petition for certiorari without prepayment of Clerk’s fees or costs in this Court. Counsel appointed by this Court to represent the defendant on this appeal will, no doubt, be willing to assist him in the preparation of the necessary petition and record. The order appealed from is affirmed. . The first paragraph of § 3651 provides: “Upon entering a judgment of conviction of any offense not punishable by death or life imprisoment, any court having jurisdiction to try offenses against the United States, except in the District of Columbia, when satisfied that the ends of justice and the best interest of the public as well as the defendant will bo served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” . The first paragraph of the Act, so far as pertinent, provided: “The courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia. when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the" }, { "docid": "21354303", "title": "", "text": "the trial court was manifestly correct in denying appellant’s motion to withdraw his guilty plea. Certainly, the Court has not abused its discretion. His guilty plea left standing, the District Court was justified in entering a judgment of conviction in accordance with the plea. Appellant stands convicted of the charge. Having determined that appellant stands validly convicted under the Dyer Act, it now falls upon us to determine if the action of the trial court in re-sentencing appellant violated appellant’s constitutional guarantee against double jeopardy. The Fifth Amendment to the Constitution provides in part: “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * It is universally accepted that this amendment prohibits a second punishment for a single offense. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873); Oxman v. United States, 148 F.2d 750, 159 A.L.R. 155 (8 Cir. 1945), cert. denied 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001; Smith v. United States, 287 F.2d 270 (9 Cir.1961) cert. denied 366 U.S. 946, 81 S.Ct. 1676, 6 L.Ed.2d 856. Appellant was sentenced by the District Court to three years probation February 16,1955. On January 3, 1958 appellant’s original probation was revoked and he was sentenced to three more years on probation, which was terminated on June 6, 1958. Thus, with the termination of probation order of June 6, 1958, appellant had completely served his sentence. Therefore, when, on July 29, 1965, appellant' was sentenced to three more years probation, he was being punished a second time for the commission of a single offense. This type of governmental action was condemned by the landmark case of Ex parte Lange, 18 Wall. 163, 168, 85 U.S. 163, 168 (1873). The Court therein stated: “If the judgment of the court is that the convict be imprisoned for four months, and he enters- immediately upon the period of punishment, can the court, after it has been fully completed, * * * vacate that judgment and render another for three or six" }, { "docid": "4352758", "title": "", "text": "EDWARDS, Circuit Judge. Petitioner-Appellant in this proceeding sought a writ of habeas corpus to free himself from sentence of probation which had been imposed on him by United States District Judge Carl A. Weinman. He had, prior to filing his petition, served a three year sentence for mail fraud imposed by Judge Weinman at the same time as the probation sentences. The sentencing judge specified that the probation sentences were to begin after completion of the term of commitment. Federal District Judge John W. Peek, who heard the habeas corpus petition, held on what we regard as settled authority that a probation sentence could be attacked by habeas corpus (see Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)) and that the sentencing court had power to make the probation terms commence after completion of the sentence of commitment, Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282 (1937); Green v. United States, 298 F.2d 230 (C.A.9 1961). 0n this apeal the only material question pertains to petitioner’s contention that the probation sentences imposed by Jud«e Weinman were consecutive rather than concurrent, and that in total they greatly exceeded the five year limitation on Probation contained in Title 18, U.S.C. § 3651. The applicable statutory language reads: “The period of probation, together with any tension thereof, shall *ot exceed five years” TitIe 18, U.S.C § 3651. The two judgments of the court complained of in this regard, as signed and entered by Judge Weinman, read in pertinent part as follows: Criminal No. 9570: “IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of FIVE (5) Year a on Count 1 and for a period of THREE (3) Years on each of Counts 2, 3 and 4 of the Indictment. “IT IS FURTHER ADJUDGED that defendant pay a Fine of FIVE THOUSAND ($5,000.00) DOLLARS on Count 1 of this Indictment and that he stand committed until the payment of said Fine or until he is otherwise discharged by" }, { "docid": "4668213", "title": "", "text": "the theft of the automobile in question and both were acquitted by a jury. Thereupon the court ordered the defendant further held, and on February 22, 1945, after a hearing, entered the following order: “It is, therefore, ordered and adjudged by the Court that the order heretofore made suspending the probation of the defendant be, and the same is, set aside, and that the probation of the said Robert Stanley Mankowski be, and the same is, revoked.” The defendant was sentenced to serve a term of 18 months imprisonment. From this order of revocation and sentence the defendant has appealed. A probationer may not have his probation revoked unless it is made to appear that he has failed to comply with the terms and conditions. Hollandsworth v. United States, 4 Cir., 34 F.2d 423, 428; United States v. Van Riper, 2 Cir., 99 F.2d 816, 817; Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566. Courts in revoking and setting aside probation are given very wide latitude. Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266; Title 18, U.S. C.A. § 724. A 'trial court has the power to place a defendant on probation effective after a subsequent offense, such as a completion of service of sentence on another charge. Frad v. Kelly, 302 U.S. 312, 315, 58 S.Ct. 188, 82 L.Ed. 282; Dillingham v. United States, 5 Cir., 76 F.2d 35, 36; Cooper v. United States, 5 Cir., 91 F.2d 195. A very careful reading of the court’s order will disclose that the defendant was not only placed on probation for a period of five years, conditioned on his future good behavior and on the further condition that he re-enter the United States army, but the order goes further and ex pressly orders that “said sentence of probation be suspended (italics ours) if defendant goes back into the army.” The record does not disclose how or in what way the trial court first obtained custody of the defendant and tried him for the offense on which he was adjudged guilty. It" }, { "docid": "8894321", "title": "", "text": "may be taken before the court, and “Thereupon the court may. revoke the probation * * * and, if imposition of sentence was suspended, may impose any sentence which might originally 'have been imposed.” It has been authoritatively decided that when a defendant pleads guilty to three indictments and the court imposes a prison sentence under one of the three, it may suspend imposition of sentence on the other two and place the defendant on probation to begin after service of sentence on the third indictment. Frad v. Kelly, 302 U.S. 312, 314, 58 S.Ct. 188, 82 L.Ed. 282. We see no reason to doubt that the court’s discretion to determine the sequence of sentences is equally broad when the probationer is contemporaneously sentenced for violation of probation and the commission of separate crimes. See Mankowski v. United States, 5 Cir., 148 F.2d 143, 144. The order in which the prison terms are to be served seems to be a mere matter of form affecting no conceivable interest of the convict. Moreover, acceptance of the appellant’s contention would mean that where a probationer is already in custody under a state sentence, as was the appellant, probation may never be revoked without resulting in making the sentence on the revocation run concurrently with the existing state sentence — a most undesirable result. We find nothing in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, upon which the appellant particularly relies, to support his contention. The order on appeal is affirmed. . He also committed a state offense of which he was convicted in a state court on November 26, 1943 and remanded for sentence on December 12, 1943. He was brought into the federal court for arraignment on indictment O 112-172 pursuant to a writ of habeas corpus. . United States v. Tacoma, 2 Cir., 176 F.2d 242." }, { "docid": "7997807", "title": "", "text": "period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932); see also Frad v. Kelly, 302 U.S. 312, 318, 58 5.Ct. 188, 192, 82 L.Ed. 282 (1937) (describing probation as “a system of tutelage”); Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937) (probation is “concerned with rehabilitation, not with the determination of guilt” and “comes as an act of grace to one convicted of a crime”) (citation omitted). More recently, the Court described probation as a form of “conditional liberty.” Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); see also United States v. Beech-Nut Nutrition Corp., 925 F.2d 604, 608 (2d Cir.1991) (“Probation does not confer upon a convicted defendant the absolute liberty which ordinary citizens enjoy. Neither is a person on probation a prisoner absent the walls.”). Similarly, this court has found that the use of probation as. an alternative to incarceration dates back to the year 1681. United States v. Stine, 646 F.2d 839, 841 (3d Cir.1981); see also id. at 841-42 (first state probation statute enacted in 1878; federal probation statute enacted in 1925). To say that the nature of probation is well-settled would be an understatement. In Corpuz, the Ninth Circuit acknowledged this traditional view of probation as rehabilitation rather than punishment, but noted that the Sentencing Reform Act of 1984, Pub.L. No. 98-473, ch. II, § 212, 98 Stat. 1987, 1992-95 (1984), transformed probation into a type of sentence' like imprisonment. The court noted: “Penologically and semantically, probation is a sentence undér the Sentencing Reform Act. It is no longer an alternative to sentencing; it is a sentence in and of itself.” Corpuz, 953 F.2d at 529. Although the statutory provisions enacted as part of the 1984 act refer to the “sentence of probation,” 18 U.S.C. §§ 3561-62 (1988), this is merely" }, { "docid": "12214436", "title": "", "text": "sentence which might originally have been imposed. The appellant has attacked (1) the jurisdiction of the District Court and (2) the power of. the acting District Judge to perform the duties of a District Judge for the Southern District of New York. The jurisdiction of the District Court flows from the provisions of 18 U.S.C.A. § 725 which provides in part that: “ * * * At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the 'court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.” This statute gave the court the power to supervise the conduct of the probationer not only during the period of probation when he was bound to make such reports of his doings as might lawfully be required but afterwards up to the time when the maximum sentence which could have been imposed would have expired. Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282. The practical difference between action .taken on an alleged violation of probation during the probation period and action taken thereafter but within the allowed time is one of procedure. In the first situation the probationer may be brought into court either with or without the issuance of a warrant but in the second instance a warrant is required. Kaplan v. Hecht, 2 Cir., 24 F.2d 664. For the purpose of the supervisory control of a probationer by the court, the statute extends the period of permissive action beyond the period set for probation whenever that does not equal in length the maximum time for which sentence might have been imposed. Hollandsworth v. United States, 4 Cir., 34 F.2d 423; United States ex rel. Grossberg v. Mulligan, 2 Cir., 48 F.2d 93. It is true that the term “suspension of execution of sentence” was not included in the statute which provides that “the court may revoke" }, { "docid": "22444081", "title": "", "text": ". 18 U.S.C.A. §§ 3651, 3653. The duties of the probation officer do not include maintaining constant physical custody of a probationer, § 3655. . That such intention does not exist at all, see United States v. Binion, D.C., 13 F.R.D. 238, 243, appeal dismissed, 9 Cir., 201 F.2d 498, certiorari denied 345 U.S. 935, 73 S.Ct. 796, 97 L.Ed. 1363, where the court said: “Probation is not punishment. The court either suspends the imposition of the sentence, or, having imposed it, stays its execution. 18 U.S.C.A. § 3651. In granting probation the defendant is not taken into custody. He is returned to his regular status in the life of the community, and, except for certain supervision of conduct and limitation of his right to leave the District without the permission of the court or the probation officer, ho remains a free agent.” Expressing the view that probation or parole is not even “constructive custody,” see United States v. Schurman, D.C., 84 F.Supp. 411, 413. Bather, whatever control is maintained through probation would seem to be suspended while the probationer is incarcerated by another sovereign, as during that time the period of probation is deemed tolled. United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, certiorari denied 302 U.S. 683, 58 S.Ct. 31, 82 L.Ed. 527; McGuire v. Warden, U. S. Penitentiary, D.C., 122 F.Supp. 699. . Indeed, it relegated Schmittroth to “rural and mountain country.” . United States v. Bradford, 2 Cir., 194 F.2d 197, certiorari denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371. That case concerned a motion under 28 U.S.C.A. § 2255, but, as Judge Learned Hand said, 194 F.2d at page 200, “The word, ‘custody,’ has the same meaning as in habeas corpus.” . Even as the federal authorities were required to return in Ableman v. Booth (United States v. Booth), 21 How. 506, 62 U.S. 506, 16 L.Ed. 169. . Again, this is because California, having physical custody of a person previously free within its boundaries, could not be deprived by the federal court of that custody, as a matter" } ]

[ { "docid": "15801779", "title": "", "text": "‘Dangerous instrument’ means any instrument, article, or substance which, under the circumstances in which it is used or attempted- or threatened to be used, is capable of causing death or serious physical injury[,]”). Any natural reading of the term “substance” must include drugs, such as heavy doses of narcotics, or poisons, such as sarin, both of which cause “physical injury” without the use of “physical force against the person of another,”'18 U.S.C. § 924(e)(2)(B)(i). Indeed, no physical force- of any kind is required to violate the statute, by its very terms: one could, “with intent to cause serious physical injury to another person, [ ] cause[ ] such injury to such person or to a third party by means of .. -a dangerous instrument,” Conn. Gen. Stat. § 53a-59(a)(1), e.g., by using emotional force to compel another person to take a cyanide pill, or by distributing anthrax through a building’s air conditioning system. The court acknowledges that the Second Circuit’s decision in Walker, 442 F.3d at 788, suggests the contrary position. The court there concluded that a conviction for second degree, assault under the New York Penal Law was a violent felony under both the Elements Clause and the Residual Clause. Id. In New York, as in Connecticut, second degree assault is committed where a defendant causes physical injury to a person “by means of a deadly weapon or a dangerous instrument.” N.Y. Penal Law § 120.05(2). The court concluded, without further discussion, that “[t]o (attempt to) cause physical injury by. means of a deadly weapon or dangerous instrument is necessarily to (attempt to) use ‘physical force,’ on any reasonable interpretation of that term, and necessarily creates ‘a serious risk of physical injury to another.’ ” Walker,'442 F.3d at 788. However, the Walker court did not discuss the statutory definition of “dangerous instrument,” which in New York, as in Connecticut, includes “substancefs] ... which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury,” N.Y. Penal Law § 10.00(13). Given that the" } ]

[ { "docid": "15801789", "title": "", "text": "as counterintuitive to say the least. Holding that armed robbery doesn’t qualify as a violent felony seems even more absurd. But [ ] that conclusion is compelled [because the statutes at’ issue do not have as an element the use of force.]”). To evade this result, the United States has asked the court to read into the two statute's at issue here an element of “thé use of physical force against the person of another,” that do not have such an element but do criminalize the imposition of “bodily injury.” The Government claims that the focus of the elements inquiry must be the imposition of bodily injury, because a focus on force may exclude many statutes that are, on their face, quite violent but do not have* as an element, the use of force. If the Government were to succeed in this effort, ACCA never needed a Residual Clause at all: the Elements Clause would have been enough to capture such statutes. Indeed, were its argument to prevail, the meaning of the Elements Clause would take on a different meaning than its plain language. Should Johnson’s retroactivity remove many statutes from the ambit of the Armed Career Criminal Act, as the United States fears, Congress may revise the Act to capture those statutes in a manner that complies with the Due Process Clause, or states may revise their statutes to require the use of force as an element of their violent crimes. Until then, a statute may only act as an ACCA predicate if it is a “serious drug offense,” “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “is burglary, arson, [extortion, or] involves use of explosives.” 18 U.S.C. § 924(e). Because Villa-nueva’s prior convictions for first degree assault and, as will discussed further below, assault on an officer, did not, and do not, meet the requirements of any of these three categories, he neither was, nor is he today, eligible for a sentencing enhancement under the Act, given that he has only two qualifying drug convictions. In" }, { "docid": "3492139", "title": "", "text": "of which he was convicted. III. This court “review[s] de novo a district court’s determination that a defendant should be sentenced as an armed career criminal.” United States v. Vanhook, 640 F.3d 706, 709 (6th Cir.2011). Findings of fact underlying a district court’s sentencing calculations are reviewed for clear error and the district court’s conclusions of law are reviewed de novo. United States v. Galloway, 439 F.3d 320, 322 (6th Cir.2006). A. Kentucky’s facilitation statute provides: A person is guilty of criminal facilitation when, acting with knowledge that anoth er person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime. Ky.Rev.Stat. Ann. § 506.080. Here, the crime Elliott was convicted of facilitating was robbery, first degree, which is defined as: A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he: (a) Causes physical injury to any person who is not a participant in the crime; or (b) Is armed with a deadly weapon; or (c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime. Ky.Rev.Stat. Ann. § 515.020. Elliott acknowledges that robbery, first degree, is a violent felony under the ACCA. He argues, however, that by reaching down into the armed robbery charge to attach the “force” necessary for a violent offense, the sentencing court violated Descamps. More specifically, he contends that 1) the Kentucky offense of facilitation to commit a crime does not have as one if its elements the requisite “use, attempted use, or threatened use of physical force against another,” which would render it a crime of violence under U.S.S.G § 4B1.2(a), and 2) Descamps prohibits looking at the actual facts of the offense to find the use of force. Elliott is correct that independent of the" }, { "docid": "19459855", "title": "", "text": "(10th Cir. 2010). In Herron , we held the Colorado menacing statute, which involved \"knowingly plac[ing] or attempt[ing] to place another person in fear of imminent serious bodily injury .... by the use of a deadly weapon,\" fell within the elements clause. 432 F.3d at 1137-38 (citing Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000) ). In so doing, we noted \"[t]his conduct easily satisfies the requirement of 'the threatened use of physical force against the person of another,' under the ACCA.\" Id. at 1138 (citing 18 U.S.C. § 924(e)(2)(B)(i) ). In Ramon Silva , we held the New Mexico \"apprehension causing\" aggravated assault statute, which \"requires proof that a defendant purposefully threatened or engaged in menacing conduct toward a victim, with a weapon 'capable of producing death or great bodily harm,' \" also fell within the elements clause. 608 F.3d at 670 (citing N.M. Stat. § 30-1-12(B) ); see also N.M. Stat. § 30-3-5. We explained that threatening a victim with a weapon \"threatens the use of 'violent force' because by committing such an act, the aggressor communicates to his victim that he will potentially use 'violent force' against the victim in the near-future.\" Id. (quoting Curtis Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). As Defendant pointed a rifle at a trooper \"for the purpose of threatening and intimidating him,\" ROA Vol. II at 10, Herron and Ramon Silva would have supported the district court's decision to consider this crime under the elements clause. In fact, three years after Defendant's sentencing, this Court relied on Herron to conclude that a conviction for pointing a firearm \"for the purpose of threatening and intimidating\" another person under § 1289.16 qualified as an ACCA predicate offense under the elements clause. United States v. Hood , 774 F.3d 638, 645-46 (10th Cir. 2014), abrogated by Mathis v. United States , --- U.S. ----, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). This was the exact same offense Defendant committed. Compare Hood , 774 F.3d at 646 (stating the defendant \"willfully, knowingly, and without" }, { "docid": "11383553", "title": "", "text": "see Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016), but here we must confront it. The Hobbs Act defines robbery, in relevant part, as the taking of personal property “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). Committing such an act necessarily requires using or threatening force. Pressing the opposite view, Anglin asserts that a robber hypothetically could put his victim in “fear of injury5’ without using or threatening force. This argument is contrary to our precedents. In United States v. Armour, 840 F.3d 904 (7th Cir. 2016), we considered whether the § 924(c)(3)(A) elements clause encompassed federal attempted armed bank robbery as defined by 18 U.S.C. § 2113(a), (d)—which can be accomplished “by intimidation” or by “assault,” with “assault” defined as “an intentional attempt to inflict or threat to inflict, bodily injury ... that creates in the victim a reasonable fear or apprehension of bodily harm” and that “may be committed without actually touching, striking, or injuring the other person.” Id. at 908-09. We answered yes, reasoning that a “victim’s fear of bodily harm is necessarily fear of violent physical force.” Id. at 909. We also held in Armour that Indiana robbery, which similarly can be accomplished by “putting any person in fear,” satisfied the identical “use, attempted use, or threatened use of physical force” requirement in § 4B1.2(a)(l) of the Sentencing Guidelines. 840 F.3d at 907. In so holding, we rejected the argument that Anglin makes here, that “ ‘putting any person in fear’ does not necessarily involve ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” Ibid. And we rejected similar arguments in United States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016) (“In the ordinary case, robbery by placing a person in fear of bodily injury under Indiana law involves an explicit or implicit threat of physical force and therefore qualifies as a violent felony under § 924(e)(2)(B)(i).”), and in United States v. Lewis, 405 F.3d 511, 514" }, { "docid": "3492141", "title": "", "text": "underlying crime that is being facilitated, Kentucky’s facilitation statute is broad and does not meet the force prong’s narrow definition of “use, attempted use or threatened use of physical force against another.” He is also correct that to the extent the district court examined the facts underlying the facilitation to commit robbery conviction and focused on Elliott’s providing a handgun to the robber, it ran afoul of Descamps. However, Elliott was not convicted of facilitation in the abstract; he was convicted of facilitation to commit robbery, first degree. We turn then to the elements of that offense. In Kentucky, the elements of facilitation to commit robbery, first degree, are 1) the defendant knew that another person was committing or intended to commit robbery, first degree, 2) the defendant engaged in conduct that he knew would provide the person with means or opportunity to commit the crime, and 3) the defendant’s conduct in fact aided the person to commit the offense. B. Focusing on the elements of facilitation to commit robbery, first degree, our analysis is guided by United States v. Gloss, 661 F.3d 317 (6th Cir.2011), in which this court determined that a prior conviction of facilitation to commit robbery under Tennessee law, Tenn.Code Ann. §§ 39-11-403 and 39-13-401, qualified as a crime of violence under the force prong of the ACCA, § 924(e)(2)(B)(i). The court confined its analysis to the question whether the offense has as an element the use, attempted use, or threatened use of physical force against the person of another and distinguished cases discussing the ACCA’s residual clause. Because conviction of facilitation in Tennessee requires proof that the underlying crime was actually committed, and the underlying crime of robbery includes the element of the use or threatened use of force, the court concluded that facilitation to commit robbery in Tennessee has as an element the use or threatened use of force. The same is true of the Kentucky statute. Elliott argues that Descamps was decided after Chandler and Gloss, and prohibits our looking beyond the elements of the facilitation statute to the facts of the facilitated" }, { "docid": "17981931", "title": "", "text": "another.’ ” Id. at 34 (alteration in original) (quoting Commonwealth v. Ford, 424 Mass. 709, 677 N.E.2d 1149, 1151 (1997)). We held that, “under either of these two theories, [the state] had to show that Am acted intentionally.” Id. -Whindleton has not argued on appeal that this conclusion was incorrect or that any intervening precedent requires us to revisit our holding regarding the mens rea of the Massachusetts ADW statute. . The equivalent of the ACCA’s Force Clause in the Massachusetts statute defines a “violent crime” as \"any crime punishable by imprisonment for a term exceeding one year ... that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another.” Mass. Gen. Laws ch. 140, § 121; see also Mass. Gen. Laws ch. 269, § 10G. The term \"physical force” in the Massachusetts statute \"means ‘violent or substantial force capable of causing pain or injury.' ” Clark, 2014 WL 2776858, at *1 (citation omitted). . Citing Am, the Tenth Circuit also rejected the argument that the conviction for apprehension-causing aggravated assault lacked the necessary mens rea since it was a \"general intent crime.” Ramon Silva, 608 F.3d at 672-73. “[T]he crime requires proof that a defendant purposefully threatened or engaged in menacing conduct toward a victim, with a weapon capable of producing death or great bodily harm.” Id. at 674 (emphasis deleted). The Tenth Circuit concluded that \"this intentional conduct threatens the use of physical force against the person of another, and therefore qualifies as a violent felony under the ACCA.” Id. . We note that this circuit has held that a conviction for ABDW \"does not have as an element” the intentional use of physical (i.e. violent) force, and so does not qualify as a \"crime of violence” under a different (but similarly worded) statute, 18 U.S.C. § 16(a). United States v. Fish, 758 F.3d 1, 9 (1st Cir.2014) (internal quotation marks omitted). But whether Fish's holding should inform our analysis of the ACCA is a point we need not decide today, as the defendant" }, { "docid": "5589337", "title": "", "text": "clause of the ACCA was unconstitutional. — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). This court, however, has upheld the similarly-worded residual clause in § 924(c)(3)(B). United States v. Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016) (per curiam). Because the residual clause in § 924(c)(3)(B) is still valid, a crime that no longer qualifies as a predicate offense under the ACCA as a violent felony may still qualify as.a crime of violence under § 924(c). For example, a defendant may be convicted under § 924(c) for use of a firearm in furtherance of a crime of violence where the underlying offense is conspiracy to commit murder for hire under 18 U.S.C. § 1958. United States v. Taylor, 813 F.3d 1139, 1148 (8th Cir. 2016). However, “[t]o convict for conspiracy to commit murder for hire under 18 U.S.C. § 1958, the government must prove that the defendant ‘(1) travelled or caused another to travel in interstate commerce, (2) with the intent that a murder be committed, (3) for hire.’ ” Id. (quoting United States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996)). Thus, murder for hire can only constitute a crime of violence 'under the residual clause of § 924(c)(3)(B), and not under the force clause of § 924(c)(3)(A), because it does not have “as an element the use, attempted use, or threatened use of physical force against the person or property of ■ another.” 18 U.S.C. § 924(c)(3)(A). See United States v. Herr, No. 16-CR-10038-IT, 2016 WL 6090714, at *4 (D. Mass. Oct. 18, 2016) (“A person may thus violate 18 U.S.C. § 1958 by mere engagement in interstate commerce with the intent that statute forbids. Because this ... statute can be violated without proof of ‘use,’ ‘attempted use,’ or ‘threatened use of physical force,’ the murder-for-hire statute does not have as a required ‘element the, use, attempted use, or threatened use of physical force against the property of another.’”). Accordingly, a conviction under 18 U.S.C. § 1958 would not qualify as a predicate offense under the ACCA’s definition of violent felony even though it still" }, { "docid": "8193908", "title": "", "text": "and makes no mention of the Massachusetts case law deeming the degree of force immaterial to a conviction for armed robbery. We are instead persuaded by the First Circuit’s more thorough and well-reasoned analysis in United States v. Castro-Vazquez, 802 F.3d 28 (1st Cir.2015). The defendant there had a prior conviction under Puerto Rico’s robbery statute, which criminalizes a person’s “unlawfully taking personal property belonging to another in the immediate presence of said person and against his/her will by means of violence or intimidation.” Id. at 37 (alteration omitted) (quoting P.R. Laws Ann. tit. 33, § 4826) (internal quotation marks omitted). Assuming “violence is defined under Puerto Rico law to include the slightest use of force,” the First Circuit held “the prior offense would fall short of the ... requirement that the offense include an element of ‘physical force,’ which is defined as ‘violent force — that is, force capable of causing physical pain or injury to another person.’” Id. Castro-Vazquez is analogous to this case and persuasive. See also United States v. Dunlap, No. 1:14-CR-00406-AA, 2016 WL 591757, at *5, — F.Supp.3d -, (D.Or. Feb. 12, 2016) (holding a conviction. for robbery under Oregon Revised Statutes § 164.395(1), which “requires only minimal force,” does not satisfy Johnson, 559 U.S. 133, 130 S.Ct. 1265). In sum, because the degree of force required to commit armed robbery in Massachusetts is immaterial so long as the victim is aware of it, Massachusetts’ armed robbery statute does not have “as an element the use, attempted use, or threatened use of physical, force against the person . of. another.” 18 U.S.C. § 924(e)(2)(B)(i). Under the categorical approach, therefore, a conviction under the Massachusetts statute does not qualify as a violent felony under ACCA’s force clause. The government does not argue Parnell’s conviction falls under § 924(e)(2)(B)(ii) or that the modified categorical approach applies. Accordingly, we hold Parnell’s 1990 armed robbery conviction does not qualify as a predicate conviction for purposes of a sentencing enhancement under ACCA. Given that neither this conviction nor Parnell’s 1989 conviction for assault and battery by dangerous weapon qualifies as" }, { "docid": "23052466", "title": "", "text": "destructive or violent force.’ ” United States v. Landeros-Gon-zales, 262 F.3d 424, 426 (5th Cir.2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n. 8 (5th Cir.1995), which explained that, in the context of burglary, force means “more than the mere asportation of some property of the victim”). Second, under 16(a)’s clear language, use of force must be “an element” of the offense, another term for which we have previously delineated a specific meaning: “In our current legal terminology, an element is ‘[a] constituent part of a claim that must be proved for the claim to succeed.’ Black’s Law Dictionary 538 (7th ed. 1999).... If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element — implicit or explicit — of the crime.” United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir.2004) (en banc). Thus, an assault offense under section 22.01(a)(1) satisfies subsection 16(a)’s definition of a crime of violence only if a conviction for that offense could not be sustained without proof of the use of “destructive or violent” force. The bodily injury required by section 22.01(a)(1) is “physical pain, illness, or any impairment of physical condition.” Tex. Pen.Code Ann. § 1.07(a)(8). Such injury could result from any of a number of acts, without use of “destructive or violent force”, making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim. To convict a defendant under any of these scenarios, the government would not need to show the defendant used physical force against the person or property of another. Thus, use of force is not an element of assault under section 22.01(a)(1), and the assault offense does not fit subsection 16(a)’s definition for crime of violence. This court had previously held that an assault offense under section 22.01(a)(1) “has, as an element, the use ... of physical force” under 18 U.S.C. § 921(a)(33)(A)(ii) so" }, { "docid": "8494347", "title": "", "text": "“language is broad enough to cover myriad other schemes, not involving force, whereby physical injury can be caused intentionally”). For example, a person could intentionally cause physical injury by “telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim.” United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir.2006) (holding that a similar Texas statute did not satisfy 16(a)’s definition of violent crime). Of course, in Fish, when we approached an analogous question under Massachusetts law — was intent to injure an element of the crime — we were able to answer that question by relying, in part, on a Massachusetts case holding that proof of mere recklessness was sufficient for conviction. See Fish, 758 F.3d at 10 (discussing Commonwealth v. Burno, 396 Mass. 622, 487 N.E.2d 1366, 1368-69 (1986)). Here, Whyte can point to no Connecticut case in which an assault conviction was sustained in the absence of violent force. The absence of such a case, says the government, means that violent force is required. The problem with this argument is that while finding a case on point can be telling, not finding a case on point is much less so. This logic applies with particular force because prosecutions in Connecticut for assault have apparently not generated available records or other evidence that might allow us to infer from mere observation or survey the elements of the offense in practice. See Peter M. Brien, Bureau of Justice Statistics, U.S. Dep’t of Justice, Improving Access to and Integrity of Criminal History Records 9 (2005) (dis cussing the “extensive problem” of state criminal record databases lacking information regarding disposition). Undaunted by the dry well it dug in Connecticut law, the BIA, in In re Martin, turned to the legislative history of section 16(a) itself in the form of a sentence in a United States Senate Judiciary Committee report stating that a “crime of violence” would “include a threatened or attempted simple assault.” S.Rep. No. 98-225, at 307 (1983), 1984 U.S.C.C.A.N. 3182, 3486-3487; see Martin, 23" }, { "docid": "3492140", "title": "", "text": "force upon another person with intent to accomplish the theft and when he: (a) Causes physical injury to any person who is not a participant in the crime; or (b) Is armed with a deadly weapon; or (c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime. Ky.Rev.Stat. Ann. § 515.020. Elliott acknowledges that robbery, first degree, is a violent felony under the ACCA. He argues, however, that by reaching down into the armed robbery charge to attach the “force” necessary for a violent offense, the sentencing court violated Descamps. More specifically, he contends that 1) the Kentucky offense of facilitation to commit a crime does not have as one if its elements the requisite “use, attempted use, or threatened use of physical force against another,” which would render it a crime of violence under U.S.S.G § 4B1.2(a), and 2) Descamps prohibits looking at the actual facts of the offense to find the use of force. Elliott is correct that independent of the underlying crime that is being facilitated, Kentucky’s facilitation statute is broad and does not meet the force prong’s narrow definition of “use, attempted use or threatened use of physical force against another.” He is also correct that to the extent the district court examined the facts underlying the facilitation to commit robbery conviction and focused on Elliott’s providing a handgun to the robber, it ran afoul of Descamps. However, Elliott was not convicted of facilitation in the abstract; he was convicted of facilitation to commit robbery, first degree. We turn then to the elements of that offense. In Kentucky, the elements of facilitation to commit robbery, first degree, are 1) the defendant knew that another person was committing or intended to commit robbery, first degree, 2) the defendant engaged in conduct that he knew would provide the person with means or opportunity to commit the crime, and 3) the defendant’s conduct in fact aided the person to commit the offense. B. Focusing on the elements of facilitation to commit robbery, first degree, our analysis is" }, { "docid": "15801790", "title": "", "text": "take on a different meaning than its plain language. Should Johnson’s retroactivity remove many statutes from the ambit of the Armed Career Criminal Act, as the United States fears, Congress may revise the Act to capture those statutes in a manner that complies with the Due Process Clause, or states may revise their statutes to require the use of force as an element of their violent crimes. Until then, a statute may only act as an ACCA predicate if it is a “serious drug offense,” “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or “is burglary, arson, [extortion, or] involves use of explosives.” 18 U.S.C. § 924(e). Because Villa-nueva’s prior convictions for first degree assault and, as will discussed further below, assault on an officer, did not, and do not, meet the requirements of any of these three categories, he neither was, nor is he today, eligible for a sentencing enhancement under the Act, given that he has only two qualifying drug convictions. In short, section 53a-59(a) of the Connecticut General Statutes, by its very terms, permits conviction by means of less than “physical force against the person of another,” he., by means of the use of a substance. Conn. Gen. Stat. § 53a-3(6)-(7); 53a-59(a)(l). Thus, the court harbors “grave doubt,” O’Neal, 513 U.S. at 435, 115 S.Ct. 992, that the United States, under Taylor, could have established that Villa-nueva was convicted under any version of that statute that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)®. 2. Assault on an Officer Villanueva was also convicted of assault on an officer. The relevant statute, section 53a-167c of the Connecticut General Statutes, at the time Villanueva was convicted, provided in relevant part: A person is guilty of assault of a peace officer ... when, with intent to prevent a reasonably identifiable peace officer ... from performing his or her duties, and while such peace officer .,. is acting in the performance of his or her" }, { "docid": "18099604", "title": "", "text": "crimes and including a catch-all \"use of force” clause: \"any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). . Although our decision rests on the Tennessee statute’s inclusion, of reckless conduct, we also question whether the aggravated-assault statute’s requirement that a person \"cause[] serious bodily injury,\" § 39-13-102(a)(l)(A) (1991), necessarily requires the \"use of physical force,” § 924(e)(2)(B)(i). Except in cross-reference to \"intentionally or knowingly caus[ing] physical contact with another [that] a reasonable person would regard ... as extremely offensive or provocative,” § 39 — 13— 101(a)(3) (1991), aggravated assault under § 39-13-102(a)(l)(A) (1991) does not require any degree of contact or use of force. Compare United States v. Mansur, 375 Fed.Appx. 458, 463-64 (6th Cir.2010) (unpublished opinion) (concluding that Ohio statute for robbery, which states that “ '[n]o person in attempting or committing a theft offense ... shall use or threaten the immediate use of force against another,’ ” was a \"violent felony” under the \"use of force” clause (quoting Ohio Rev.Code Ann. § 2911.02)), cert. denied, —U.S. —, 130 S.Ct. 3377, 176 L.Ed.2d 1262 (2010). Rather, one commits aggravated assault under § 39-13-102(a)(l)(A) by causing serious bodily injury, \"no matter how slight” the defendant’s use of force. Johnson, 130 S.Ct. at 1270 (internal quotation marks omitted). Although we might expect that someone who causes serious bodily injury to another did so with a strong physical force, the statute does not require it. Cf. State v. Baggett, 836 S.W.2d 593, 595-96 (Tenn.Crim.App.1992) (affirming defendant’s conviction for aggravated assault when the defendant placed the unconscious victim in the middle of the road and a passing car ran him over, causing serious bodily injury). Tennessee also does not define \"serious bodily injury” to require any particular degree of contact. See State v. Parker, No. M2009-02448-CCA-R3-CD, 2011 WL 51734, at *17 (Tenn.Crim.App. Jan. 6, 2011) (unpublished decision) (defining \"serious bodily injury”). Compare United States v. Flores-Gallo, 625 F.3d 819, 822-24 (5th Cir. 2010) (concluding that Kansas’s" }, { "docid": "10631361", "title": "", "text": "low threshold of violent force is necessarily satisfied in attempted bank robbery by intimidation. A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type satisfying Curtis Johnson because bank robbery under § 2113(a) inherently contains a threat of violent physical force. Armour also argues that his conviction should be vacated because robbery under § 2113(d) could be accomplished by “assault.” The jury was instructed here that “assault” means “an intentional attempt to inflict, or threat to inflict, bodily injury upon another person with the apparent and present ability to cause such injury that creates in the victim a reasonable fear or apprehension of bodily harm. An assault may be committed without actually touching, striking, or injuring the other person.” Under § 2113(d), the “assault” putting the victim in fear must be “by the use of a dangerous weapon or device,” so we need not worry about such hypothetical minor injuries as paper cuts or hits from painful snowballs. Cf. Flores v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor battery with bodily injury not a crime of domestic violence under immigration statute because such minor injuries could satisfy criminal statute). Thus, for the same reasons that robbery by intimidation under § 2113(a) qualifies as a crime of violence under § 924(c), so does robbery by assault by a dangerous weapon or device under § 2113(d). The victim’s fear of bodily harm is necessarily fear of violent physical force that is inherent in armed bank robbery. For these reasons, robbery by intimidation under § 2113(a) and robbery by assault by a dangerous weapon or device under § 2113(d) have as an element the use, attempted use, or threatened use of physical force against the person or property of another and thus qualify as crimes of violence under § 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir. 2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We" }, { "docid": "11353254", "title": "", "text": "Id. at 1198. In this case we confront a different standard — whether the offense of sexual battery under Oklahoma law creates a substantial risk that physical force may be used against another. We have little difficulty in concluding that it does. In Rowland, the Tenth Circuit noted that a conviction under the Oklahoma statute presupposes “the intentional sexual touching of another with a particular mental state and without consent” and held that such a touching “represents a particular subset of battery.” Id. at 1197 (quoting Okla. Stat. Ann. tit. 21, § 642). Further, “[b]ecause the statute at issue here presupposes a lack of consent, it necessarily carries with it a risk of physical force.” Id. By analogy, we believe that the risk that physical force will be used to complete the offense of sexual battery is substantial. See also Sutherland v. Reno, 228 F.3d 171, 176 (2nd Cir.2000) (indecent assault and battery under Massachusetts law qualified as a crime of violence because “any violation of [the Massachusetts statute], by its nature, presents a substantial risk that force may be used to overcome the victim’s lack of consent and accomplish the indecent touching”) (emphasis in original). In holding that sexual battery through deception under Ohio law is a crime of violence, the Sixth Circuit expressed a similar view, noting that such an offense “carries with it the ever-present possibility that the victim may figure out what’s really going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint.” See United States v. Mack, 53 F.3d 126, 128 (6th Cir.1995). In all such cases, “the non-consent of the victim is the touchstone for determining” whether a given offense involves a substantial risk that physical force may be used in the commission of the offense. Sutherland, 228 F.3d at 177. Because the Oklahoma offense of sexual battery is a crime of violence under 18 U.S.C. § 16(b), Zaidi’s offense qualifies as a crime of violence within the meaning of 8 U.S.C. § 1103(a)(43) and an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Under the last-cited statute," }, { "docid": "8494346", "title": "", "text": "cause physical injury” and that the defendant “caused physical injury.” State of Connecticut Judicial Branch, Criminal Jury Instructions, 6.1-13 Assault in the Third, Degree (Physical Injury) — § 53a-61(a)(1), http://www.jud.state.ct.us/ji/ criminal/part6/6.1-13.htm (last revised Dec. 1, 2007). “Physical injury,” the instructions state, “is defined as impairment of physical condition or pain. It is a reduced ability to act as one would otherwise have acted. The law does not require that the injury be serious. It may be minor.” Id. See also Conn. Gen.Stat. § 53a-3(3) (defining “physical injury” as “impairment of physical condition or pain”). The government points to no Connecticut authority that even suggests that Connecticut has interpreted this statute to include the use of violent force as an element. Nor have we found authority to that effect. Common sense, moreover, suggests there exists a “realistic probability” that, under this statute, Connecticut can punish conduct that results in “physical injury” but does not require the “use of physical force.” Gonzales, 549 U.S. at 193, 127 S.Ct. 815; see Chrzanoski, 327 F.3d at 196 (subsection (a)(l)’s “language is broad enough to cover myriad other schemes, not involving force, whereby physical injury can be caused intentionally”). For example, a person could intentionally cause physical injury by “telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim.” United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir.2006) (holding that a similar Texas statute did not satisfy 16(a)’s definition of violent crime). Of course, in Fish, when we approached an analogous question under Massachusetts law — was intent to injure an element of the crime — we were able to answer that question by relying, in part, on a Massachusetts case holding that proof of mere recklessness was sufficient for conviction. See Fish, 758 F.3d at 10 (discussing Commonwealth v. Burno, 396 Mass. 622, 487 N.E.2d 1366, 1368-69 (1986)). Here, Whyte can point to no Connecticut case in which an assault conviction was sustained in the absence of violent force. The absence of such a case, says the" }, { "docid": "11383552", "title": "", "text": "the use, attempted use, or threatened use of physical force against the person or property of another” (the elements clause, also known as the force clause), or “(B) by its nature, involves a substantial risk that physical force against the person or property of another may be used” (the residual clause). Anglin was convicted of Hobbs Act robbery, 18 U.S.C. § 1951(a), for the December 9 repair shop robbery, during which he discharged his gun. The question, then, is whether a Hobbs Act robbery conviction can serve as a predicate “crime of violence” under either prong of § 924(c)(3). Anglin argues that the § 924(e)(3)(B) residual clause is invalid under Johnson, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569. In this, he is right. See United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (“[W]e hold that the residual clause in 18 U.S.C. § 924(c)(3)(B) is ... unconstitutionally vague.”). That leaves the question whether Hobbs Act robbery falls within the § 924(c)(3)(A) elements clause. We recently found it unnecessary to decide that issue, see Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016), but here we must confront it. The Hobbs Act defines robbery, in relevant part, as the taking of personal property “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). Committing such an act necessarily requires using or threatening force. Pressing the opposite view, Anglin asserts that a robber hypothetically could put his victim in “fear of injury5’ without using or threatening force. This argument is contrary to our precedents. In United States v. Armour, 840 F.3d 904 (7th Cir. 2016), we considered whether the § 924(c)(3)(A) elements clause encompassed federal attempted armed bank robbery as defined by 18 U.S.C. § 2113(a), (d)—which can be accomplished “by intimidation” or by “assault,” with “assault” defined as “an intentional attempt to inflict or threat to inflict, bodily injury ... that creates in the victim a reasonable fear or apprehension of bodily harm” and that “may be committed without actually touching," }, { "docid": "16142733", "title": "", "text": "showing that his prior wanton endangerment conviction may no longer qualify as a crime of violence under the ACCA. With respect to Sargent’s prior conviction for first-degree -rape, under Kentucky law, first-degree rape consists of either: (a) “sexual intercourse with another person by forcible compulsion”; or (b) “sexual intercourse with another person who is incapable of consent because he ... [i]s physically helpless; or [i]s less than twelve-, years old.” See Ky. Rev. Stat. § 510.040(l)(a), (b). Accordingly, part (a) has as an element “forcible compulsion” and would thus likely qualify as a violent felony under the use-of force clause. See 18 U.S.C. § 924(e)(2)(B)(I). But part (b) may be violated without the use of force. See Martin v. Kassulke, 970 F.2d 1539, 1546 (6th Cir. 1992) (noting that part (a) of the provision deals with forcible compulsion, while part (b) of the provision relates to “physical helplessness,” and “thus [part (b) ] may be violated by the [offender] without any need for the use of forcible compulsion”). When, as here, a statute “could be.violated in.a way that would constitute a [violent felony] and in a way that would not,” the statute may be “divisible.” See United States v. Denson, 728 F.3d 603, 608 (6th Cir. 2013) (citation omitted); see also Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (noting that a statute is not divisible if it merely “enumerates various factual means of committing a single element”). A divisible statute is one that effectively creates multiple different crimes. See Denson, 728 F.3d at 612. When a statute is' divisible, courts must employ what is known as the “modified categorical approach” in order to determine whether the prior conviction qualifies under the ACCA. See Denson, 728 F.3d at 608; see also Elliott, 757 F.3d at 494. Under the modified categorical approach, the court may “consult a limited class of documents ... to determine which alternative [element] formed the basis of the defendant’s prior conviction.” Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013); see also Shepard v." }, { "docid": "722817", "title": "", "text": "threatened use of physical force against the person of another”. Yet it is possible to attempt murder without using, attempting, or threatening physical force. The crime of attempt in Illinois consists in setting out to commit a crime and taking a substantial step toward accomplishing that encl, 720 ILCS 5/8-4(a). So one could be convicted of attempted murder for planning the assassination of a public official and buying a rifle to be used in that endeavor. Buying a weapon- does not itself use, attempt, or threaten physical force; neither does drawing up assassination plans. See, e.g., People v. Voit, 355 Ill. App. 3d 1015, 292 Ill.Dec. 17, 825 N.E.2d 273 (2004) (providing money and a car key to a hit man constitutes attempted murder even though violence did not follow). It follows, Hill maintains, that attempts are not''violent felonies under the elements clauses of § 924(e) and similar federal recidivist laws, such as 18 U.S.C. § 16 and 18 U.S.C. § 924(c). At least two courts of appeals have held otherwise. See United States v. Fogg, 836 F.3d 951 (8th Cir. 2016) (attempted drive-by shooting is a violent felony); United States v. Mansur, 375 Fed.Appx. 458, 463-64 (6th Cir. 2010) (attempted robbery is a violent felony). One additional circuit appears to agree. United States v. Wade, 458 F.3d 1273, 1278 (11th Cir. 2006) (an attempt to commit any crime treated as a violent felony in the listing of § 924(e)(2)(B)(ii) is itself a violent felony). Hill does not point to any circuit that has accepted his argument. In this circuit, United States v. Armour, 840 F.3d 904, 907-09 (7th Cir. 2016), holds that attempted bank, robbery is a crime of violence under § 924(c), and Hill v. United States, 827 F.3d 560 (7th Cir. 2016), that attempted murder is a crime of violence under U.S.S.G. § 4B1.2(a)(l), the career-offender Guideline that closely parallels § 924(e). Both Armour and Hill are distinguishable. Armour observed that the federal offense of attempted bank robbery requires at least the use of “intimidation,” a form of threatened violence, and Hill relied on Application Note 1" }, { "docid": "5589338", "title": "", "text": "States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996)). Thus, murder for hire can only constitute a crime of violence 'under the residual clause of § 924(c)(3)(B), and not under the force clause of § 924(c)(3)(A), because it does not have “as an element the use, attempted use, or threatened use of physical force against the person or property of ■ another.” 18 U.S.C. § 924(c)(3)(A). See United States v. Herr, No. 16-CR-10038-IT, 2016 WL 6090714, at *4 (D. Mass. Oct. 18, 2016) (“A person may thus violate 18 U.S.C. § 1958 by mere engagement in interstate commerce with the intent that statute forbids. Because this ... statute can be violated without proof of ‘use,’ ‘attempted use,’ or ‘threatened use of physical force,’ the murder-for-hire statute does not have as a required ‘element the, use, attempted use, or threatened use of physical force against the property of another.’”). Accordingly, a conviction under 18 U.S.C. § 1958 would not qualify as a predicate offense under the ACCA’s definition of violent felony even though it still qualifies as a crime pf violence to support a conviction under § 924(c). Further, both clauses of the definition of crime of violence in § 924(c)(3) include force against the property of another, not just, the person of another. Under the ACCA, however, a felony is only a violent felony if it involves the use of force against the person of another, not the property of another. See 18 U.S.C. § 924(e); see also Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). And we have previously held that “the phrase ‘person or property1 lists two alternative means of committing” an offense. McMillan, 863 F.3d at 1058. Thus, § 924(c)’s definition of crime of violence is not divisible and sweeps' broader than the definition of violent felony under the ACCA. And because a crime that would not qualify as a violent felony under the ACCA may still qualify as a crime of violence under § 924(c), a conviction for the use of a firearm during and in relation to" } ]

[ { "docid": "21138808", "title": "", "text": "bankruptcy court jurisdiction....” Id. at 166-67. “Matters that affect the interpretation, implementation, consummation, execution or administration of the confirmed plan will typically have the requisite close nexus.” Id. at 167. Applying these principles, we concluded in Resorts International that the close nexus for “related to” jurisdiction was lacking. Inasmuch as the malpractice action was initiated post-confirmation and the bankruptcy estate no longer existed, we noted that the malpractice claim could not affect the bankruptcy estate. Because the debtor was not a party to the action, we observed that the malpractice action could have “only incidental effect on the reorganized debtor.” Id. at 169. We also pointed out that the malpractice claim could not interfere with the implementation of the Reorganization Plan or affect the creditors as they were no longer creditors of the bankruptcy estate but beneficiaries of the litigation trust. Id. Resorts International is instructive. It teaches that the mere fact that a dispute may arise post-confirmation is not determinative of the jurisdictional question. Rather, the inquiry is multi-faceted. Id. Consistent with that approach, and even though the dispute arose post-confirmation as in Resorts International, we conclude that the retirees’ claim that She-nango is obligated by the Reorganization Plan to immediately fund the Pension Plan has a close nexus with the bankruptcy proceeding. Unlike Resorts International, where the debtor was not a party to the malpractice action, here, Shenango is a party to the dispute. This dispute concerns Shenan-go’s Reorganization Plan and the interpretation of the Plan’s provision relating to the debtor’s liability for fully funding any benefit increases to participants of the Pension Plan other than the Class 4B retirees. That potential liability supplies the close nexus. Based on the valuations of the benefits under the window pensions, the effect on the debtor’s liabilities will be more than incidental. Accordingly, we conclude that the Bankruptcy Court appropriately exercised “related to” jurisdiction under 28 U.S.C. § 157(c), and that the District Court had appellate jurisdiction under 28 U.S.C. § 158(a). We have authority to review the District Court’s final judgment under 28 U.S.C. § 158(d)(1). III. Shenango contends that" } ]

[ { "docid": "17593555", "title": "", "text": "F.2d 455, 457 (9th Cir.1988) (citing Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). Surveying the courts that had applied a limited version of the Pacor test in the post-confirmation context, we recognized that the Pacor test of whether “ ‘the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.... [I]f 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’ ” was “somewhat overbroad in the post-confirmation context.” Pegasus Gold Corp., 394 F.3d at 1193, 1194 (quoting In re Fietz, 852 F.2d at 457). The “close nexus” test determines the scope of bankruptcy court’s post-confirmation “related to” jurisdiction. Pegasus Gold Corp., 394 F.3d at 1194. As adopted from the Third Circuit, the test encompasses matters “affecting the ‘interpretation, implementation, consummation, execution, or administration of the confirmed plan.’ ” Id. (quoting Binder v. Price Waterhouse & Co. (In re Resorts Int'l, Inc.), 372 F.3d 154, 166-67 (3d Cir.2004)). The close nexus test “recognizes the limited nature of post-confirmation jurisdiction but retains a certain flexibility.” Id. Applying the close nexus test in Pegasus Gold, we held that “related to” jurisdiction existed because some claims concerning post-confirmation conduct— specifically, alleged breach of the liquidation/reorganization plan and related settlement agreement as well as alleged fraud in the inducement at the time of the plan and agreement — would “likely require interpretation of the [settlement agreement and plan].” Id. The claims and remedies could also “affect the implementation and execution” of the as-yet-unconsummated plan itself. Id. In contrast, the close nexus test was not satisfied in Sea Hawk Seafoods, Inc. v. Alaska (In re Valdez Fisheries Development Association, Inc.), 439 F.3d 545, 548 (9th Cir.2006). The bankruptcy court there had reopened a dismissed chapter 11 case — in which no plan had ever been confirmed — to determine whether a settlement agreement between a creditor (a seafood processing plant) and former debt- or (a fisheries development association) also protected the State of Alaska from the creditor" }, { "docid": "18150803", "title": "", "text": "effect on the debtor’s ability to consummate the confirmed plan”). The Third Circuit recently reviewed the assorted postconfirmation approaches, concluding that although the courts “have varied the standard they apply post-confirmation, the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” In re Resorts Int’l, Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court also recognized that in cases involving continuing trusts (such as litigation trusts, or, as here, a liquidating trust), trusts “by their nature maintain a connection to the bankruptcy even after the plan has been confirmed.” Id. at 167. The court ultimately concluded that matters affecting “the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus.” Id. We agree that post-confirmation bankruptcy court jurisdiction is necessarily more limited than pre-confirmation jurisdiction, and that the Pacor formulation may be somewhat overbroad in the post-confirmation context. Therefore, we adopt and apply the Third Circuit’s “close nexus” test for post-confirmation “related to” jurisdiction, because it recognizes the limited nature of post-confirmation jurisdiction but retains a certain flexibility, which can be especially important in cases with continuing trusts. See id. at 166-67. Here, while the majority of the claims asserted in the complaint' are common state tort and contract claims involving post-confirmation conduct, the Appellees also allege that: the State breached the Plan and the Zortman Agreement; the State breached the covenant of good faith and fair dealing with respect to these agreements; and the State committed fraud in the inducement at the time it entered into the ■ Plan and the Zortman Agreement. Among the remedies sought for these claims are disgorgement of the $1,050,000 paid to the State as part of the settlement and rescission of the Zortman Agreement. Resolution of these claims will likely require interpretation of the Zortman Agreement and the Plan. Compare Resorts Int’l, 372 F.3d at 170 (no post-confirmation jurisdiction over accounting malpractice action where no need “to interpret or construe the Plan or the incorporated Litigation Trust Agreement.”). Moreover," }, { "docid": "20468761", "title": "", "text": "investment. E.g., Garland Co. v. J.L. Miller & Sons, Inc., 395 Pa.Super. 532, 535, 577 A.2d 917 (Pa.Super.Ct.1990) (“any words inconsistent with a promise to pay will make the acknowledgment inoperative”); Fix’s Estate, 140 Pa.Super. at 63-64, 12 A.2d 826 (“a desire, an intention or a hope of ability to pay in the future” is equivocal, indeterminate, and insufficient to toll the statute of limitations). Finally, Jannetta testified he did not believe he owed any money at the time the Debtor demanded repayment on the Advances and thought that he could negotiate a more reasonable number with the Debt- or at a later time. Jannetta’s testimony is consistent with a finding that the October 20, 2010 e-mail was not an unconditional admission of liability or promise to pay. VI. CONCLUSION For the reasons set forth above, I find that the statute of limitations has expired on Miller’s claim against Jannetta. Judgment will be entered in favor of Defendant Jannetta and against Plaintiff Miller. ORDER AND NOW, after trial in the above adversary proceeding, and for the reasons stated in the accompanying Opinion, it is hereby ORDERED that JUDGMENT is ENTERED in favor of Defendant Anthony Jannetta and against Plaintiff George L. Miller, Liquidating Agent. . This court has subject matter jurisdiction over this adversary proceeding under 28 U.S.C. § 1334(b) (providing for original, but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11). After confirmation of a chapter 11 plan, the exercise of subject matter jurisdiction under § 1334(b) is limited to matters that \"affect an integral aspect of the bankruptcy process,” i.e., to matters that have a “close nexus to the bankruptcy plan or proceeding.” In re Seven Fields Dev. Corp., 505 F.3d 237, 258 (3d Cir.2007) (quoting In re Resorts Int’l, Inc., 372 F.3d 154, 167 (3d Cir.2004)). Specifically, the matter must affect \"the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement.” Resorts, 372 F.3d at 168-69. The requisite close nexus can exist in various types of controversies. See" }, { "docid": "2325423", "title": "", "text": "judge every time something unpleasant happens. Pettibone Corp. v. Easley, 935 F.2d 120, 122 (7th Cir.1991). Consequently, a party invoking the bankruptcy court’s post-confirmation jurisdiction must satisfy two requirements. First, the matter must have a “close nexus to the bankruptcy plan or proceeding, as when a matter affects the interpretation, implementation, consummation, execution, or administration of the confirmed plan or incorporated litigation trust agreement.” Resorts Int’l, 372 F.3d at 168-69; accord Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1194 (9th Cir.2005)(adopting Resorts Int’l test); Bank of Louisiana v. Craig’s Stores of Texas, Inc. (In re Craig’s Stores of Texas, Inc.), 266 F.3d 388, 390 (5th Cir.2001)(post-confirmation jurisdiction limited to “matters pertaining to the implementation or execution of the plan”); Goodman v. Phillip R. Curtis Enters., Inc., 809 F.2d 228, 232 (4th Cir.1987)(bankruptcy court’s post-confirmation authority limited “to matters concerning the implementation or execution of a confirmed plan”)(citing 11 U.S.C. § 1142(b)); Rahl v. Bande, 316 B.R. 127, 133 (S.D.N.Y.2004)(post-confirmation jurisdiction extends to matters that involve the interpretation or implementation of the plan). Second, the plan must provide for the retention of jurisdiction over the dispute. Hosp. and Univ. Prop. Damage Claimants v. Johns Manville Corp. (In re Johns-Manville Corp.), 7 F.3d 32, 34 (2d Cir.1993). It should also be noted that the distinction between core and non-core jurisdiction may not be particularly relevant after confirmation. Although the cases generally focus on “related to” post-confirmation jurisdiction, the scope of the post-confirmation jurisdiction mapped out by the case law usually meets the definition of a core proceeding. Broadly speaking, the proceeding must affect some aspect of the plan — its meaning, its implementation or its consummation — to come within the Court’s post-confirmation jurisdiction. By definition, plan-related matters arise only in the context of a chapter 11 bankruptcy case. See TJN, Inc. v. Superior Container Corp. (In re TJN, Inc.), 207 B.R. 502, 508-09 (Bankr. D.S.C.1996)(post-eonfirmation state law-based litigation arising in connection with pre-confirmation sale and affecting implementation of plan was core). But even if the proceeding is core, its outcome must still affect the Plan. In addition," }, { "docid": "4495009", "title": "", "text": "State argues that to preserve the bankruptcy court’s ability to interpret its prior rulings, a different standard applies to postconfirmation proceedings. The Third Circuit, after reviewing the post-confirmation cases, concluded that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction.” In re Resorts Int’l. Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court concluded that matters affecting the interpretation, implementation, consummation, .execution, or administration of the confirmed plan will typically have the requisite close nexus. We adopted the close nexus test in In re Pegasus Gold Corp., 394 F.3d 1189, 1194 (9th Cir.2005). There, we found the requisite close nexus to exist where- the post-confirmation claims asserted that the defendant breached the Reorganization Plan and where the outcome of those claims could affect the implementation and execution of the Plan. This is not. a proceeding falling within the rationale of the close nexus test. Here, there was no confirmed plan and there is no claim that the dispute between two creditors, Sea Hawk and the State, would have any effect on the now-closed bankruptcy estate. The bankruptcy court has no role in the resolution of the creditors’ dispute, and it is involved only fortuitously because the dispute implicates the terms of a settlement agreement approved by the court as a precondition of the dismissal of VFDA’s bankruptcy. But that agreement has been fully implemented with respect to VFDA. The bankruptcy court did not consider dismissal of VFDA’s bankruptcy to automatically divest it of jurisdiction over á related case. It reasoned that after dismissal, the court has discretion to retain jurisdiction over a related proceeding, citing In re Carraher, 971 F.2d 327, 328 (9th Cir.1992). Carraher’s fraud case had originally been filed in state court but was then removed to bankruptcy court as a related case because of the pendency of a bankruptcy case. When the underlying bankruptcy case was dismissed, the bankruptcy court decided to retain jurisdiction of the fraud case. This court held that “bankruptcy courts are not automatically divested of jurisdiction over related" }, { "docid": "15582961", "title": "", "text": "at 163-64 (internal quotation marks omitted), we developed the test to be applied “[a]t the post-confirmation stage”: As stated, the jurisdiction of the non-Article III bankruptcy courts is limited after confirmation of a plan. But where there is a close nexus to the bankruptcy plan or proceeding, as when a matter affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement, retention of post-confirmation bankruptcy court jurisdiction is normally appropriate. Id. at 168-69. After our present consideration of Resorts, we are satisfied that the “close nexus” test is applicable to “related to” jurisdiction over any claim or cause of action filed post-confirmation, regardless of when the conduct giving rise to the claim or cause of action occurred. We reach this conclusion because in Resorts, though we were dealing with post-confirmation rather than pre-confirmation conduct, we focused on the point of time in which the cause of action was instituted: whether it was filed in the “post-confirmation stage,” i.e., the “post-confirmation context.” Furthermore, we did not indicate that the test should be confined to situations in which the conduct giving rise to the complaint occurred post-confirmation. Moreover, since Resorts, we have stated that we use the test to determine whether “ ‘related to’ jurisdiction ... exists] at the post-confirmation stage,” Stoe, 436 F.3d at 216 n. 3 (emphasis added). Most recently in In re Shenango Group Inc., 501 F.3d 338, 340 (3d Cir.2007), we applied the Resorts “close nexus” test in a “related to” jurisdictional inquiry over a “post-confirmation dispute.” Additionally, we note that the Court of Appeals for the Ninth Circuit, which adopted the “close nexus” test that we described in Resorts, has stated that the test applies when “the proceeding arises post-confirmation” and applied the “close nexus” test with respect to claims raised post-confirmation involving pre-confirmation conduct. See In re Pegasus Gold Corp., 394 F.3d 1189, 1193-94 (9th Cir.2005). Importantly, limiting the “close nexus” test to cases involving only post-confirmation conduct would be inconsistent with our reasoning to depart from Pacor in Resorts. In Resorts, we indicated that our central reason to" }, { "docid": "15582960", "title": "", "text": "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. at 163-64 (internal quotation marks omitted), we developed the test to be applied “[a]t the post-confirmation stage”: As stated, the jurisdiction of the non-Article III bankruptcy courts is limited after confirmation of a plan. But where there is a close nexus to the bankruptcy plan or proceeding, as when a matter affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement, retention of post-confirmation bankruptcy court jurisdiction is normally appropriate. Id. at 168-69. After our present consideration of Resorts, we are satisfied that the “close nexus” test is applicable to “related to” jurisdiction over any claim or cause of action filed post-confirmation, regardless of when the conduct giving rise to the claim or cause of action occurred. We reach this conclusion because in Resorts, though we were dealing with post-confirmation rather than pre-confirmation conduct, we focused on the point of time in which the cause of action was instituted: whether it was filed in the “post-confirmation stage,” i.e., the “post-confirmation context.” Furthermore, we did not indicate that the" }, { "docid": "11830824", "title": "", "text": "made “under the plan” is recognized, the jurisdictional issue may be framed as follows: does the bankruptcy court have jurisdiction under 28 U.S.C. § 1334(b) to reopen a bankruptcy case to determine whether a chapter 13 debtor cured a prepetition default by fully performing his plan payment obligations under 11 U.S.C. § 1322(b)(5) both to the trustee and to the creditor on account the obligations arising postpetition. In 2006, in In re Venuto, I had occasion to consider this question and applied the standard for the exercise of post-confirmation jurisdiction articulated by our Court of Appeals in In re Resorts International, Inc., 372 F.3d 154, 166-69 (3d Cir.2004): whether the matter has a close nexus to the bankruptcy plan or the case. “Matters that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically [satisfy the] requisite close nexus [test].” Resorts, 372 F.3d at 166-67 (quoted in Venuto, 343 B.R. at 128). In Venuto, I concluded that “[t]here may be no issue that has a closer nexus to a chapter 13 bankruptcy case,” 343 B.R. at 129, and held that the bankruptcy court has jurisdiction over a dispute whether a chapter 13 debtor had fully performed his plan obligations (and therefore had effected a cure under § 1322(b)(5) of a prepetition default). In Venuto, I also considered the two (2) decisions Chase now cites in support of its jurisdictional argument, Coffin v. Malvern Federal Savings Bank, 90 F.3d 851 (3d Cir.1996) and In re Hurst, 2004 WL 557203 (Bankr.E.D.Pa. Mar.3, 2004). I concluded that any statement in Coffin that may be read to suggest that all disputes concerning the final impact of a chapter 13 plan on a mortgagee’s rights must be decided in a nonbankruptcy forum was non-binding dictum. Further, I found that Hurst was factually distinguishable and, to the extent that the court considered itself bound by Coffin, it was based on an overly broad reading of that appellate decision. Venuto, 343 B.R. at 129-31. Chase presents no other arguments in support of its position and has not cited any post Venuto decisions that" }, { "docid": "10578566", "title": "", "text": "been confirmed, however, the estate no longer exists, so this test is not to be applied literally. See id. Looking to other cases where jurisdiction was preserved in the post-confirmation context, the Third Circuit held that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” Id. at 166-67. Where there is a continuing trust, like the litigation trust formed in the Resorts International bankruptcy, “[m]atters that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus.” Id. at 167. The court acknowledged that “[t]o a certain extent, litigation trusts by their nature maintain a close connection to the bankruptcy even after the plan has been confirmed.” Id. The key inquiry, then, is “how close a connection warrants post-confirmation jurisdiction” such that the bankruptcy jurisdiction, intended to be limited by Congress in § 1334, “would not raise the specter of ‘unending jurisdiction’ over continuing trusts.” Id. Looking to the facts of the adversary action before it, the Third Circuit held that the proceeding “lack[ed] a close nexus to the bankruptcy plan or proceeding and affeet[ed] only matters collateral to the bankruptcy process.” 372 F.3d at 169. Further, [t]he resolution of these malpractice claims will not affect the estate; it will have only incidental effect on the reorganized debtor; it will not interfere with the implementation of the Reorganization Plan; though it will affect the former creditors as Litigation Trust beneficiaries, they no longer have a close nexus to [the] bankruptcy plan or proceeding because they exchanged their creditor status to attain rights to the litigation claims.... Id. The court also emphasized that “the potential to increase assets of the Litigation Trust and its beneficiaries does not necessarily create a close nexus sufficient to confer ‘related to’ bankruptcy court jurisdiction post-confirmation.” Id. at 170. Finally, while the plan had provided for the retention of bankruptcy jurisdiction over all actions arising from or connected to the trust agreement, the Third Circuit held that “jurisdictional retention plans" }, { "docid": "2359485", "title": "", "text": "counts and the administration, consummation or execution of the Plan in this case because the underlying causes of action did not arise “in connection” with the Plan and do not require construction or interpretation of the Plan for their resolution. See Resorts, 372 F.8d at 167. See also Shandler v. DLJ Merch. Banking, Inc. (In re Insilco Techs., Inc.), 330 B.R. 512, 525-26 (Bankr.D.Del.2005) (finding no jurisdiction over pre-petition state law claims brought by liquidating trustee post-confirmation); Falise v. American Tobacco Co., 241 B.R. 48, 58 (holding that “the mere possibility of increasing the size of [a Plan-created] Trust’s assets post-confirmation [was] insufficient to create [post-confirmation] jurisdiction”); Grimes v. Graue (In re Haws), 158 B.R. 965, 971 (Bankr. S.D.Tex.1993) (finding no post-confirmation jurisdiction where “[t]he only nexus to [the] bankruptcy case [was] that the plaintiff ... [was] a liquidating trustee representing a group of creditors appointed pursuant to the confirmed plan of reorganization”). RJL notes that Falise and Grimes, which both concerned litigation of a debtor’s pre-petition non-bankruptcy claims, were cited with approval by the Third Circuit in Resorts. Resorts, 372 F.3d at 168. As such, RJL argues that the LGI Court “got it wrong” when it concluded it had jurisdiction over pre-petition, non-bankruptcy claims brought by the post-confirmation trustee. See 322 B.R. at 103. The Court is persuaded by the well-reasoned LGI opinion and is not persuaded by RJL’s reading of the other cases. Resorts decided the narrow issue of “related to” jurisdiction over a claim that arose post-confirmation. 372 F.3d at 156. Though it cited Falise and Grimes as “useful for illustrating” the contours of its “close nexus” criterion, it did not import their reasoning wholesale. See id. at 167-68. Moreover, its holding that “the potential to increase assets of the [post-confirmation] Trust and its beneficiaries does not necessarily create a close nexus” to the bankruptcy proceeding does not mean that a sufficiently close nexus might not exist on different facts. See id. at 170 (emphasis added). Among other things, the Third Circuit pointed to the post-confirmation nature of the dispute and its unrelatedness to any provision of" }, { "docid": "15582942", "title": "", "text": "to’ jurisdiction in [Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)],” in which we held that federal courts have “related to” jurisdiction to hear a proceeding if “the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” Resorts, 372 F.3d at 164. We, however, decided in Resorts that application of the Pacor test in the “post-confirmation context” was “problematic” 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,” as generally “the confirmation of a plan vests all of the property of the estate in the reorganized debtor.” Id. at 165 (internal quotation marks omitted). In light of the circumstance that post-confirmation the debtor’s estate will not exist, and in recognition of the need to confine bankruptcy court jurisdiction to appropriate limits, we recognized a new test to be applied in the “post-confirmation context” in which “the essential inquiry” is “whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” Id. at 166-67. In other words, “[a]t the post-confirmation stage, the claim must affect an integral aspect of the bankruptcy process — there must be a close nexus to the bankruptcy plan or proceeding.” Id. at 167. For instance, we held that “[mjatters that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus.” Id. Applied to the facts of Resorts — where the trustee’s principal allegation was that Price Waterhouse erroneously reported in its audit reports that accrued interest on the litigation trust belonged to the debtor rather than the trust — we held that the “proceeding lacks a close nexus to the bankruptcy plan or proceeding and affects only matters collateral to the bankruptcy process.” Id. at 169. We explained our decision as follows: The resolution of [the] malpractice claims will not affect the estate; it will have only incidental effect on the reorganized debtor; it will not interfere with the" }, { "docid": "17623259", "title": "", "text": "it did not have “related to” jurisdiction and the reservation of jurisdiction contained.in the plan alone could not confer jurisdiction. The case sub judice is different than Solyndra or cases like it. Here, the Trustee is basing claims on rights that flow from the Plan and from the Purchase Agreement which the Court approved. The Trustee’s claims for the purpose of the motion to dismiss for lack of subject matter jurisdiction calls into play the integrity of the bankruptcy process. Solyndra did not. The Court therefore finds that it has “arising in” jurisdiction over the allegations the Trustee raises in the Complaint. The Trustee alleges that the Defendants are violating the Purchase Agreement, the LLC Agreement and the Plan by diluting the Equity Consideration. As such, the Complaint raises issues that relate to the integrity of the bankruptcy process. Seven Fields and Southmark among other cases affirm jurisdiction under such circumstances. If the Court does not have “arising in” jurisdiction, it surely has “related to” jurisdiction. The Third Circuit recognizes that “jurisdiction may be problematic” after confirmation because the debtor’s estate then ceases to exist. Resorts, 372 F.3d at 165. Yet, “when a matter affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement, retention of post-confirmation bankruptcy court jurisdiction is normally appropriate.” Id. at 168-69. Under such circumstances a “close nexus” exists and there is “related to” jurisdiction. Id. at 167. There is little question that there is a close nexus between the Complaint and the bankruptcy case, including the Plan. The Equity Consideration is the subject matter of the Complaint, and the Equity Consideration is a subject of the Purchase Agreement which the Court approved in the bankruptcy case, and also of the Plan which the Court confirmed in the same case. The Equity Consideration certainly affects the implementation, consummation, and administration of the Plan. Clearly then “related to” jurisdiction exists. It is important to separate jurisdiction from the merits of the case. The Court finds that it has jurisdiction based upon the relationship of the Purchase Agreement, the LLC Agreement" }, { "docid": "5683943", "title": "", "text": "the subject of considerable case law in the Third Circuit as well as other circuits. The seminal case in this Circuit on the subject of “related-to” jurisdiction is Pacor, Inc. v. Higgins (In re Pacor, Inc.), 743 F.2d 984 (3d Cir.1984) (overruled on other grounds). Under In re Pacor, “related-to” jurisdiction exists if “the outcome of [a] proceeding could conceivably have any effect on the estate being administered in bankruptcy.” Id. at 994. However, In re Pacor is insufficient to assess “related-to” jurisdiction over the transferred action relating to the Non-Tender Parties because this action was filed after the Court had confirmed the Debtors’ plan of reorganization. Consequently, the “close nexus” standard is applied “for the purposes of determining whether a federal court has jurisdiction over a non-core ‘related-to’ proceeding in the post-confirmation context.” Geruschat v. Ernst Young LLP (In re Seven Fields Dev. Corp.), 505 F.3d 237, 260 (3d Cir.2007) (citing Binder v. Price Waterhouse Co. (In re Resorts Int’l, Inc.), 372 F.3d 154, 164-67 (3d Cir.2004)). A “close nexus” between a debtor’s bankruptcy case and a related action can be established if the action would “affect an integral aspect of the bankruptcy process.” In re Resorts at 167. “Matters that affect the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus.” Id. Several factors establish a “close nexus” between the claims by the Producers against the Non-Tender Parties and the Debtors’ consolidated bankruptcy cases. First, the record reflects that substantially all of the Non-Tender Parties have filed proofs of claim in the Debtors’ consolidated bankruptcy cases, asserting either contractual warranty and indemnification provisions or 11 U.S.C. § 503(b)(9) claims. Various Non-Tender Parties have also set off the value of the oil and gas they delivered to the Debtors after the Petition Date against the value of oil and gas they had received from the Debtors in the pre-petition period, and the agreements that effectuated such setoffs were largely incorporated into the Debtors’ plan. To the extent that these setoffs are not honored or are otherwise unwound, the Non-Tender Parties will" }, { "docid": "19326858", "title": "", "text": "Wilshire’s bankruptcy case. The bankruptcy court explained its view of its related to jurisdiction in this case as follows: [Tjhough a bankruptcy court has more limited subject matter jurisdiction post-confirmation than pre-confirmation, it retains post-confirmation subject matter jurisdiction over matters with a “close nexus” to the bankruptcy case [citing In re Pegasus Gold Corp., 394 F.3d at 1193-94], Matters involving “the interpretation, implementation, consummation, execution or administration of the confirmed plan will typically have the requisite close nexus.” Id. at 1194. In this case, the determination whether [C]FTB’s actions violate the confirmation order involves an interpretation of the confirmed plan, and confers continu ing subject matter jurisdiction on the court after plan confirmation. In re Wilshire Courtyard, 437 B.R. at 384. The bankruptcy court’s reasoning that the parties’ request that it “interpret” the plan and confirmation order establishes the “close nexus” to the bankruptcy case so as to confer related to subject matter jurisdiction is, in our view, flawed. More precisely, as the case law discussed below shows, in order to find the requisite close bankruptcy nexus and establish post-confirmation jurisdiction in a chapter 11 case, the outcome of the issues before the bankruptcy court must potentially impact the debtor, the estate, or the implementation of the plan of reorganization. Here, the outcome of the Wilshire Partners’ tax dispute with CFTB will have no impact whatsoever on the debtor, the estate, or the implementation of the Wilshire plan of reorganization. As the bankruptcy court acknowledged, in recent years various courts of appeal have articulated the limits on bankruptcy court related to jurisdiction over matters arising after confirmation of a debtor’s reorganization plan. See, e.g., Binder v. Price Waterhouse & Co. (In re Resorts Int’l, Inc.), 372 F.3d 154, 166-67 (3d Cir.2004) (“the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter”); Bank of La. v. Craig’s Stores of Tex., Inc. (In re Craig’s Stores of Tex., Inc.), 266 F.3d 388, 390-91 (5th Cir.2001) (post-confirmation bankruptcy jurisdiction limited to matters pertaining to implementation or" }, { "docid": "20529170", "title": "", "text": "to the implementation or execution of the plan,” the facts in Craig’s Stores were narrow; they involved post-confirmation claims based on post-confirmation activities. Id. at 335 (quoting Craig’s Stores, 266 F.3d at 389-91) (second and third alteration in original). The court ultimately concluded that Craig’s Stores dealt with a different type of claim — ie., post-confirmation claims, so it was not dispositive of the issue presently before the court. Id. at 336. Accordingly, the court held that the district court retained jurisdiction despite plan confirmation. Id. The Third Circuit has also examined the issue of post-confirmation related to jurisdiction. In Resorts International Financing, Inc. v. Price Waterhouse & Co. (In re Resorts International, Inc.), 372 F.3d 154, 168-69 (3d Cir.2004), the Third Circuit articulated the following test for post-confirmation related to jurisdiction: [T]he jurisdiction of the non-Article III bankruptcy courts is limited after confirmation of a plan. But where there is a close nexus to the bankruptcy plan or proceeding, as when a matter affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement, retention of post-confirmation bankruptcy court jurisdiction is normally appropriate. Other courts, including the Fourth and Ninth Circuits, have adopted the Third Circuit’s “close nexus” test. In Valley Historic, 486 F.3d at 836, the Fourth Circuit chose to adopt the “close nexus” test because “it insures that the proceeding serves a bankruptcy administration purpose on the date the bankruptcy court exercises that jurisdiction.” Applying that test to the facts before it, the Fourth Circuit concluded there was not a close nexus in a post-confirmation adversary filed by the debtor against its lender for breach of contract based on pre-confirmation activities. Id. In Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189, 1194 (9th Cir.2005), the Ninth Circuit adopted the close nexus test because it “recognizes the limited nature of post-confirmation jurisdiction but retains a certain flexibility.” Applying that test, the Ninth Circuit concluded that the bankruptcy court had post-confirmation jurisdiction over claims that “could affect the implementation and the execution of the Plan itself.” Id. Superior has certainly" }, { "docid": "17623255", "title": "", "text": "the Liquidating Trust all of their rights, title, and interests in all of the Liquidating Trust Assets” (Plan at 22); and the “Liquidating Trust [causing] the Equity Consideration to be held in a wholly — owned subsidiary of the Liquidating Trust or in a separate entity selected by the Liquidating Trustee to hold such Equity Consideration solely for the benefit of Beneficiaries to the extent provided by the LLC Agreement” (Plan at 32). “Related to” jurisdiction is described in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984), as follows: [T]he 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. At the same time, after confirmation bankruptcy courts should only exercise jurisdiction where a claim has “a close nexus to the bankruptcy plan” and the matter at issue “affects the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement.” Resorts, 372 F.3d at 168-69. A court may find a close nexus where the plan specifically enumerates the causes of action. Id. Analysis In Seven Fields, creditors alleged that Ernst & Young had committed malpractice in asserting incorrectly, and among other matters, that the debtor was insolvent. As a result, the debtor’s assets were allegedly sold at below market values. In the adversary case, the bankruptcy court’s jurisdiction was at issue. The Third Circuit agreed with the bankruptcy court and the district court. “Arising in” jurisdiction over the malpractice action existed because the claims “could only arise in the context of a bankruptcy case.” Seven Fields, 506 F.3d at 260, quoting Stoe, 436 F.3d at 218. The Seven Fields court distinguished the case from Resorts (where the Third Circuit had found bankruptcy court jurisdiction did not exist) because (1) the claims arose pre-confirmation, and (2) the alleged malpractice “implicated the integrity of the entire bankruptcy process.” Resorts, 372 F.3d at" }, { "docid": "2359484", "title": "", "text": "however, the scope of the bankruptcy court’s “related to” jurisdiction diminishes. Binder v. Price Waterhouse & Co., LLP (In re Resorts Int’l, Inc.), 372 F.3d 154, 164-65 (3d Cir.2004). Because the bankruptcy estate no longer exists post-confirmation (and thus cannot logically be affected), a claim must have “a close nexus to the bankruptcy plan or proceeding” to support post-confirmation jurisdiction in the bankruptcy court. Id. at 166-67. The Plaintiff argues that this Court has “related to” jurisdiction over the non-bankruptcy counts of the Complaint because (1) their determination could potentially increase the assets available for distribution to creditors and (2) their resolution has a close nexus with the Plan, which expressly contemplates this litigation. See Michaels v. World Color Press, Inc. (In re LGI, Inc.), 322 B.R. 95, 108 (Bankr.D.N.J.2005) (finding that post-confirmation litigation of a pre-petition claim that was “contemplated by the Plan and part of the corpus of the [Plan-created] Trust, serves the ‘implementation, consummation, [and] execution’ of the Plan”). RJL argues that the Plaintiff cannot establish a close nexus between the non-bankruptcy counts and the administration, consummation or execution of the Plan in this case because the underlying causes of action did not arise “in connection” with the Plan and do not require construction or interpretation of the Plan for their resolution. See Resorts, 372 F.8d at 167. See also Shandler v. DLJ Merch. Banking, Inc. (In re Insilco Techs., Inc.), 330 B.R. 512, 525-26 (Bankr.D.Del.2005) (finding no jurisdiction over pre-petition state law claims brought by liquidating trustee post-confirmation); Falise v. American Tobacco Co., 241 B.R. 48, 58 (holding that “the mere possibility of increasing the size of [a Plan-created] Trust’s assets post-confirmation [was] insufficient to create [post-confirmation] jurisdiction”); Grimes v. Graue (In re Haws), 158 B.R. 965, 971 (Bankr. S.D.Tex.1993) (finding no post-confirmation jurisdiction where “[t]he only nexus to [the] bankruptcy case [was] that the plaintiff ... [was] a liquidating trustee representing a group of creditors appointed pursuant to the confirmed plan of reorganization”). RJL notes that Falise and Grimes, which both concerned litigation of a debtor’s pre-petition non-bankruptcy claims, were cited with approval by the" }, { "docid": "4495008", "title": "", "text": "was no “related to” jurisdiction over a claim, though part of the bankruptcy estate, if it was filed after the Chapter 13 plan had been confirmed and all of the property of the estate had vested in the debtor. Id. at 458-59. Here, when Sea Hawk filed its adversary proceeding, VFDA’s Chapter 11 case had been dismissed and a final decree entered. When the bankruptcy court later reopened the bankruptcy case, it did so “for the limited purpose of making a determination of whether the Settlement Agree ment ... releases Sea Hawk’s state court claims against the State of Alaska.” That determination could not conceivably “alter the debtor’s rights, liabilities, options, or freedom of action ... [or] in any way impact[] upon the handling and administration of the bankrupt estate.” Fietz, 852 F.2d at 457 (quoting Pacor, 743 F.2d at 994); see In re Hanks, 182 B.R. 930, 935 (Bankr.N.D.Ga.1995) (“the enforcement of the settlement agreement cannot have .a conceivable effect on the bankruptcy case as no case is in existence at that time”). The State argues that to preserve the bankruptcy court’s ability to interpret its prior rulings, a different standard applies to postconfirmation proceedings. The Third Circuit, after reviewing the post-confirmation cases, concluded that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction.” In re Resorts Int’l. Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court concluded that matters affecting the interpretation, implementation, consummation, .execution, or administration of the confirmed plan will typically have the requisite close nexus. We adopted the close nexus test in In re Pegasus Gold Corp., 394 F.3d 1189, 1194 (9th Cir.2005). There, we found the requisite close nexus to exist where- the post-confirmation claims asserted that the defendant breached the Reorganization Plan and where the outcome of those claims could affect the implementation and execution of the Plan. This is not. a proceeding falling within the rationale of the close nexus test. Here, there was no confirmed plan and there is no claim that the dispute between two" }, { "docid": "18150802", "title": "", "text": "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. (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)) (emphasis in original). We have yet to apply the Pacor test in the postconfirmation context. Many other circuits and bankruptcy courts have modified or limited the test when the proceeding arises post-confirmation. See, e.g., In re Craig’s Stores of Texas, Inc., 266 F.3d 388, 390-91 (5th Cir.2001) (bankruptcy jurisdiction ceases to exist “other than for matters pertaining to the implementation or execution of the plan”); Trans World Airlines, Inc. v. Karabu Corp., 196 B.R. 711, 714 (Bankr.D.Del.1996) (subject matter jurisdiction over proceedings that could affect the debtor’s ability to consummate the plan); In re Walker, 198 B.R. 476, 482 (Bankr.E.D.Va.1996) (post-confirmation jurisdiction remains to the extent disputes affect successful implementation and consummation of the plan); Eubanks v. Esenjay Petroleum Corp., 152 B.R. 459, 464 (E.D.La.1993) (jurisdiction exists if proceeding has “a conceivable effect on the debtor’s ability to consummate the confirmed plan”). The Third Circuit recently reviewed the assorted postconfirmation approaches, concluding that although the courts “have varied the standard they apply post-confirmation, the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” In re Resorts Int’l, Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court also recognized that in cases involving continuing trusts (such as litigation trusts, or, as here, a liquidating trust), trusts “by their nature maintain a connection to the bankruptcy even after the plan has been confirmed.” Id. at 167. The court ultimately concluded that matters affecting “the interpretation, implementation, consummation, execution, or administration of the confirmed plan will typically have the requisite close nexus.” Id. We agree that post-confirmation bankruptcy court jurisdiction is necessarily more limited than pre-confirmation jurisdiction, and that the Pacor formulation may be somewhat overbroad in the post-confirmation context. Therefore, we adopt and apply the Third Circuit’s “close nexus” test for post-confirmation" }, { "docid": "20468762", "title": "", "text": "the reasons stated in the accompanying Opinion, it is hereby ORDERED that JUDGMENT is ENTERED in favor of Defendant Anthony Jannetta and against Plaintiff George L. Miller, Liquidating Agent. . This court has subject matter jurisdiction over this adversary proceeding under 28 U.S.C. § 1334(b) (providing for original, but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11). After confirmation of a chapter 11 plan, the exercise of subject matter jurisdiction under § 1334(b) is limited to matters that \"affect an integral aspect of the bankruptcy process,” i.e., to matters that have a “close nexus to the bankruptcy plan or proceeding.” In re Seven Fields Dev. Corp., 505 F.3d 237, 258 (3d Cir.2007) (quoting In re Resorts Int’l, Inc., 372 F.3d 154, 167 (3d Cir.2004)). Specifically, the matter must affect \"the interpretation, implementation, consummation, execution, or administration of a confirmed plan or incorporated litigation trust agreement.” Resorts, 372 F.3d at 168-69. The requisite close nexus can exist in various types of controversies. See In re Transcontinental Refrigerated Lines, Inc., 494 B.R. 816, 821 (Bankr.M.D.Pa.2013) (giving examples). In the context of an adversary proceeding to collect a pre-petition claim of the bankruptcy estate that is filed post-confirmation, the mere fact the outcome of the proceeding may result in additional assets to distribute to creditors, by itself, does not create a close nexus to the plan or the bankruptcy case. E.g., In re Insilco Technologies, Inc., 330 B.R. 512, 524 (Bankr.D.Del.2005) (citing Resorts, 372 F.3d at 170). Rather, for a sufficiently close nexus to exist, the plan must describe the action over which the court had pre-confirmation jurisdiction and expressly provide for the retention of bankruptcy court jurisdiction to liquidate the claim. E.g., In re BWI Liquidating Corp., 437 B.R. 160, 165 (Bankr.D.Del.2010). Based on my review of the bankruptcy schedules (Schedule B-16) (Bky. No. 10-14407, Doc. #3), Article 6.1(b), 6.1(c), 9.1 and 11.1 of the Second Amended Disclosure Statement (Bky. No. 10-14407, Doc. #283), and Article 7.1(a), 7.1(b), 7.1(d) and 11.1 of the Plan, I conclude that a the" } ]

[ { "docid": "21751956", "title": "", "text": "if it had one, against- the proceeds. A trustee in bankruptcy is in the position of the bankrupt just before adjudication. York Mfg. Co. v. Cassell, 26 S. Ct, 481, 201 U. S. 344, 50 L. Ed. 782. It has been held that he may not contest a mechanic’s lien, even if filed subsequent to the adjudication. In re Grissler, 136 F. 754, 69 C. C. A. 406. But it is argued that the amendment of 1910 (section 47a of the Bankruptcy Act [Comp. St. § 9631]) has placed the trustee in a better position because it provides: « * « * And such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shaE be deemed vested with aE the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon, and also, as to aE property not in the custody of the bankruptcy court, shaE be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied. * * * ” Section 13 of the New York Lien Law provides that: “A Hen for materials furnished or labor performed in the improvement of real property shaE have priority over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of the filing of the notice of such lien, except as hereinafter in this article provided, * * * and also over an attachment hereafter issued or a money judgment hereafter recovered upon a claim, which, in whole or in part, was not for materials furnished, labor performed or moneys advanced for the improvement of such real property; and over any claim or lien acquired in any proceedings upon such judgment. * * * ” It thus clearly appears that section 13 grants priority to a mechanic’s lien over all judgment creditors excepting those whose judgments were obtained or claimed for materials furnished, labor performed, or moneys advanced for the improvement of real property. It is, however, argued that this is a" } ]

[ { "docid": "15894888", "title": "", "text": "should follow it. In the latter case the court,, in its opinion, said: “A certain time is allowed in which the lien may be asserted or lost. During that time there is a preferential statutory right, in the nature of a non-perfected equitable lien, in favor of the laborer, mechanic, materialman, or subcontractors. And when a notice of lien is filed, that right is perfected. But until- the ninety days allowed by the statute within which the lien may\" be filed have- elapsed, the right cannot be defeated by the voluntary act of thepary against whom it might be asserted, such as a general assignment for the-benefit of creditors.” The court distinctly decided that the inchoate right acquired by the materialman, when perfected by the filing of his notice of lien, though filed subsequent to a general assignment of the contractor for the benefit of creditors, was superior to the rights ac quired by the assignee. A trustee in bankruptcy of the contractor or subcontractor stands in no better position than would the general assignee. This court said in Re Emslie, 102 Fed. 291, 42 C. C. A. 350: “A trustee in bankruptcy cannot acquire a better title than the bankrupt had, except as to property which has been transferred contrary to the provisions of the bankrupt act, and takes the estate subject to all liens and incumbrances other than those enumerated in section 67 (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Oomp. St. 1901, p. 3449]).” This court also decided in that case that the liens enumerated in section 67, in respect to which the trustee acquired a better title than the bankrupt, did not include a mechanic’s lien, when the notice of the lien had been filed within the statutory period, although not filed until within four months of the institution of proceedings in bankruptcy. If the trustee only acquires such title as the bankrupt had at the date of the adjudication of bankruptcy, and if that title is subject to an inchoate or equitable lien, which may subsequently, without contravening any provision of" }, { "docid": "21611234", "title": "", "text": "rights and powers are subject to such perfection under Section 546(b) of this title.” Section 546(b) provides that “[t]he rights and powers of a trustee under sections 544, 545 [avoidance of pre-petition statutory liens] and 549 [avoidance of post-petition transactions] of this title are subject to any generally applicable law that permits perfection of an interest in property to be effective against an ' entity that acquires rights in such property before the date of such perfection.” The more narrow question thus becomes whether the New York Lien Law would permit CTI to perfect its lien by serving notice of the lien and filing proof of service where another entity had acquired rights to the property after CTI had filed its notice of lien. Appellees claim that CTI cannot take advantage of this exception absent a specific provision of law permitting the perfection to “relate-back” to an earlier time. Appellees argue that because CTI filed too late to take advantage of New York Lien Law’s relation-back provision, CTI cannot be saved by § 546(b). This analysis was adopted by both the bankruptcy court and the district court. We take a different view. We see nothing in § 546(b) indicating that it applies only when the lienor fits within a “relation-back” statute. As long as an “applicable law” authorizes perfection after another party has acquired interests in the property, a lienor fits within the exception. We think that the New York Lien Law provides such authorization. While we recognize that no provision of the New York Lien Law specifically states that a superior lienor may serve its notice and file its proof of claim after another party has acquired its interest, the right to do so is reasonably inferred from §§ 3, 11, and 13(1). Section 3 of the Lien Law provides that a mechanic’s lien arises “from the time of filing a notice of such lien.” Section 13(1) provides that a mechanic’s lien “shall have priority over a conveyance ... not recorded, docketed or filed at the time of the filing of the notice of Such lien.” Under these two" }, { "docid": "15894889", "title": "", "text": "This court said in Re Emslie, 102 Fed. 291, 42 C. C. A. 350: “A trustee in bankruptcy cannot acquire a better title than the bankrupt had, except as to property which has been transferred contrary to the provisions of the bankrupt act, and takes the estate subject to all liens and incumbrances other than those enumerated in section 67 (Act July 1, 1898, c. 541, 30 Stat. 564 [U. S. Oomp. St. 1901, p. 3449]).” This court also decided in that case that the liens enumerated in section 67, in respect to which the trustee acquired a better title than the bankrupt, did not include a mechanic’s lien, when the notice of the lien had been filed within the statutory period, although not filed until within four months of the institution of proceedings in bankruptcy. If the trustee only acquires such title as the bankrupt had at the date of the adjudication of bankruptcy, and if that title is subject to an inchoate or equitable lien, which may subsequently, without contravening any provision of the bankrupt act, be perfected by the claimant, if he sees fit to do so within the statutory time, it would seem plain that the trustee’s title is impressed with the priority which the claimant is thus at any time within the 90 days prescribed by the statute for filing his notice of lien at liberty to secure. In the recent case of Crane v. Pneumatic Signaling Company, in the Appellate Division of the Supreme Court of New York (87 N. Y. Supp. 917), it was directly adjudged that the trustee in bankruptcy of the contractor or subcontractor stands in no better position than would the general assignee, and that, although the notice of lien is not filed until subsequent to the proceeding in bankruptcy, if filed within the three months the materialman has priority over the trustee. It would be most unfortunate to have a conflict of decision between the state courts and the courts of bankruptcy in respect to the meaning and effect of a statute affecting the titles to real estate, and," }, { "docid": "18577252", "title": "", "text": "against bona fide purchasers. 446 F.2d at 193-94 (citations omitted). The same distinction was drawn by this court in Franchise Tax Bd. v. Danning (In re Perry), 487 F.2d 84 (9th Cir. 1973), cert, denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). In Perry, a tax lien on personal property was acquired under another California tax lien statute which provided that, upon filing of a certificate of delinquency, the unpaid obligation “consti-tut[es] a lien upon all property of the taxpayer in the county .... The lien has the force, effect and priority of a judgment lien . . .. ” Cal.Rev. & Tax Code § 18882 (West 1970) (repealed 1977). The court held that the creditor could not perfect the lien under the provisos of section 67c(l)(B) by merely giving notice to the trustee. 487 F.2d at 89-90. The court followed the Nieves case in holding that under state law seizure was not required to perfect the lien, but rather was a means of enforcing the lien. We find Perry controlling. Because the lien could never be good against a BFP, it cannot be good against the trustee in bankruptcy. See Annot., Construction and Application of § 67c(l)(B) of Bankruptcy Act (11 U.S.C.S. § 107(c)(1)(B), Invalidating, Against Trustee in Bankruptcy,.Statutory Liens not Perfected or Enforceable at Date of Bankruptcy Against One Acquiring Rights of Bona Fide Purchaser From Debtor, 21 A.L.R.Fed. 635 (1974). See also Marsh, Triumph or Tragedy? The Bankruptcy Act Amendments of 1966, 42 Wash.L.Rev. 681, 721-23 (1967); Comment, Statutory Liens Under Section 67c of the Bankruptcy Act: Some Problems of Definition, 43 Tul.L.Rev. 305, 322-25 (1969). . B. To what extent is the county entitled to priority? If a lien is invalid against the trustee under section 67c(l)(B), section 67c(2) directs that the underlying claim be tested for priority under section 64a(4). Section 64a(4) provides that nondischargeable tax claims enjoy a fourth priority, but sets forth the following limitation: [N]o order shall be made for the payment of a tax assessed against any property of the bankrupt in excess of the value of the" }, { "docid": "23685944", "title": "", "text": "its privilege against a bona fide purchaser if the property is seized in the possession of the original vendee (by the filing of notice), it must be concluded that this privilege, a statutory lien, must be treated as a secured claim in bankruptcy. The case is remanded to the referee for treatment in accordance with this decision. Counsel for Beneficial will prepare and submit a formal decree in accordance with Rule 9(e) of the Western District of Louisiana. . Section 67(b), (c) (1) (A) & (B): “(b) The provisions of section 96 of this title to the contrary notwithstanding and except as otherwise provided in subdivision (c) of this section, statutory liens in favor of employees, contractors, mechanics, or any other class of persons, and statutory liens for taxes and debts owing to the United States or to any State or any subdivision thereof, created or recognized by the laws of the United States or any State, may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition initiating a proceeding under this title by or against him. “(c) (1) The following liens shall be invalid against the trustee: (A) every statutory lien which first becomes effective upon the insolvency of the debtor, or upon distribution or liquidation of his property, or upon execution against his property levied at the instance of one other than the lienor; (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of Section 70 of this Act and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements" }, { "docid": "15894885", "title": "", "text": "of which has been stayed, making th”e owner, the contractors, and various other parties appearing of record as lienors upon the property, defendants, including the bankrupts and their trustee in bankruptcy. The trustee, after appearing in the action and obtaining several extensions of time to answer, applied to the bankruptcy court, and obtained the order under review, staying all proceedings in the action. The application of the trustee was opposed by the plaintiff in the action and by various defendants in the action. As no opinion was delivered by the court, we are not advised of the reasons which influenced the granting of the application. The trustee, in making the application, seems to have acted upon the theory that he obtained a priority over the Van Kannel Revolving Door Company because the latter’s notice of lien was not filed until after the filing of the petition for adjudication of bankruptcy. The decision of this court in Re Roeber, 9 Am. Barikr. Rep. 303, 121 Fed. 449, 57 C. C. A. 565, that a trustee in bankruptcy of a contractor was entitled to priority over a materialman who had not filed his notice of lien-until after the institution of the bankruptcy proceeding, was based upon the consideration that the trustee succeeded to the same title which would have vested in an assignee of the contractor for -the benefit of creditors, and adopted the construction of the mechanic’s lien law (Daws 1897, p. 514, c. 418) which at that time was supposed to prevail in the courts of New York. It had been held by the state courts that the statute did not preclude the contractor from paying his creditors out of thq moneys due or to become due to him from the owner, to the exclusion of the materialmen who had not filed liens, and that, until the materialman had filed his notice of lien, he was merely a creditor at large of the contractor. McCorkle v. Hermann, 117 N. Y. 297, 22 N. E. 948; Mack v. Colleran, 136 N. Y. 617, 32 N. E. 604; Stevens v. Ogden, 130" }, { "docid": "15894887", "title": "", "text": "N. Y. 182, 29 N. E. 229. Some of the state courts had also held that, the materialman being merely a creditor at large until the filing of his notice of lien, he could not obtain priority over a general assignee of the contractor for the benefit of creditors by filing the notice subsequent to the making-of the general assignment. This court, in Re Roeber, approved the reasoning of these decisions, and, following their construction of the statute, held that the materialman who had not filed his notice-of lien could not acquire priority over a trustee in bankruptcy of the contractor by filing his notice subsequent to the time when the title of the trustee accrued. Since that decision, however, the-New York Court of Appeals, in John P. Kane Company v. Kinney, 174 N. Y. 69, 66 N. E. 619, has overruled the decisions of the state-courts which were followed by this court; and, as, this is a decision in the construction of a state statute by the highest court of the state, this court should follow it. In the latter case the court,, in its opinion, said: “A certain time is allowed in which the lien may be asserted or lost. During that time there is a preferential statutory right, in the nature of a non-perfected equitable lien, in favor of the laborer, mechanic, materialman, or subcontractors. And when a notice of lien is filed, that right is perfected. But until- the ninety days allowed by the statute within which the lien may\" be filed have- elapsed, the right cannot be defeated by the voluntary act of thepary against whom it might be asserted, such as a general assignment for the-benefit of creditors.” The court distinctly decided that the inchoate right acquired by the materialman, when perfected by the filing of his notice of lien, though filed subsequent to a general assignment of the contractor for the benefit of creditors, was superior to the rights ac quired by the assignee. A trustee in bankruptcy of the contractor or subcontractor stands in no better position than would the general assignee." }, { "docid": "23685934", "title": "", "text": "status; for the purposes of the Act, they are state-created priorities, not recognized in bankruptcy. Senate Rep. No. 1159, U.S.Code Cong. & Admin.News, supra, p. 2456 et seq. See, Collier, supra, Vol. 4, § 67.02 at p. 34, § 67.20 [1] at p. 211, § 67.20 [2] and n. 16d at pp. 219-220, § 67.20[3.1] at p. 228. A statutory lien will be viewed as such a priority when (1) it does not become effective until the debtor is insolvent or his property is being distributed or liquidated, or (2) it does not become effective until another creditor seeks execution of a claim against the property (Section 67(c) (1) (A)), or (3) it would not be enforceable against a bona fide purchaser (Bankruptcy Act, Section 1 (5); 11 U.S.C.A. § 1(5)) on the date of bankruptcy, provided that if the lien is not invalid under Section 70(c), then the lienor may constructively seize the property (by filing notice with the court) or otherwise perfect the lien against the fictitious bona fide purchaser (Section 67(c) (1) (B)). The tests provided for by Section 67 (c) (1) (A) are self-explanatory. The “bona fide purchaser test” of 67(c) (1) (B) with its reference to Section 70(c), has been explained as follows: “It is clear * * * that the enforceability of the statutory lien depends upon its state of perfection as of the date the petition is filed. Have the necessary steps been taken, by that date, to make the lien enforceable against a bona fide purchaser? That is the question to determine its validity. “A saving provision is included in clause (B) by the first proviso which permits perfection after the date of bankruptcy in some instances. This is where the lien has not yet been perfected to be enforceable against a bona fide purchaser but time is still permitted by state law for performing that particular act of perfection. In order to avail itself of this saving provision, however, the proviso requires that the lien be valid against the trustee under § 70c at the date of bankruptcy. For example, if" }, { "docid": "18577257", "title": "", "text": "improper method of valuing property for purposes of the section 64a(4) limitation to “the value of the interest of the bankrupt estate therein as determined by the court ” (emphasis added). We think that the sale price is an accurate and acceptable means of establishing value. See 4B Collier on Bankruptcy ¶ 70.98[10] at 1164 (14th ed. 1978). The district court’s order is REVERSED, and the bankruptcy court’s judgment is AFFIRMED. . Section 67c(l)(B) provides that: (c)(1) The following liens shall be invalid against the trustee: (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirement of such law: And provided further, That if applicable lien law requires a lien valid against the trustee under section 110(c) of this title to be perfected by the seizure of property, it shall instead be perfected as permitted by this subdivision by filing notice thereof with the court .... Former 11 U.S.C. § 107(c)(1)(B) (1976). . See Franchise Tax Bd. v. Danning (In re Perry), 487 F.2d 84 (9th Cir. 1973), cert, denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). . In the California system, judgment liens are acquired by filing an abstract of judgment with any county recorder. This filing will result in the attachment and perfection of a lien against all real property owned by the debtor in that county. Cal.Civ.Proc.Code § 674 (West 1980). A judgment lien has no analogue that reaches personal property. . The county contends that Poly Indus., Inc. v. Mozley, 362 F.2d 453 (9th Cir.), cert," }, { "docid": "18007432", "title": "", "text": "mechanic’s lien depend upon whether the purchaser at the time of the purchase has notice of the preexisting, unperfected lien. If the purchaser has no such notice, he cuts off the rights of the lien claimant even if the lien claimant subsequently perfects the lien within the statutory time period. Glover Linoleum & Carpet, Inc. v. Tutterow, 160 Ga.App. 410, 287 S.E.2d 348 (1981). A purchaser with notice of the lien, however, cannot defeat the rights of a lien claimant who subsequently perfects the lien in timely fashion. Oglethorpe Savings & Trust Co. v. Morgan, 149 Ga. 787, 102 S.E. 528 (1920). WWG’s power to avoid United’s lien, therefore, hinges on whether WWG is given the status of a purchaser with notice or one without notice. WWG contends that it should be treated as a purchaser without notice. Section 545 of the Bankruptcy Code, it argues, gives a debtor-in-possession the rights of a hypothetical and therefore perfect “bona fide purchaser” without actual or constructive notice of preexisting liens. WWG argues that a true “bona fide purchaser” by definition has no notice of other parties’ claims or rights to the property he is purchasing. See Black’s Law Dictionary 161 (5th ed. 1979). Therefore, WWG concludes, it must be treated as a purchaser without notice of United’s lien and as such it defeats United’s lien under Georgia law. The relation back provisions of the Georgia lien statutes, WWG notes, do not operate against a true bona fide purchaser without notice. The issue before this court was addressed by the Fifth Circuit in In re Mar ietta Baptist Tabernacle, 576 F.2d 1237 (5th Cir.1978), which arose under the old Bankruptcy Act. In that case, a mechanic’s lien claimant performed services on the debtor’s property prior to the debtor’s filing a Chapter 11 bankruptcy petition. Like United, the lien claimant perfected the lien by filing a notice of claim after the bankruptcy proceedings began but within the time allowed by state law. The Fifth Circuit had to determine whether the lien was valid against the receiver in bankruptcy under the Bankruptcy Act. The pertinent" }, { "docid": "3211667", "title": "", "text": "under this title by or against him. “(c) (1) The following liens shall be invalid against the trustee: (A) every statutory lien which first becomes effective upon the insolvency of the debtor, or upon distribution or liquidation of his property, or upon execution against his property levied at the instance of one other than the lienor; (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law: And provided further, That if applicable lien law requires a lien valid against the trustee under section 110(c) of this title to be perfected by the seizure of property, it shall instead be perfected as permitted by this subdivision by filing notice thereof with the court; # * * * * “(c) (3) Every tax lien on personal property not accompanied by possession shall be postponed in payment to the debts specified in clauses (1) and (2) of subdivision (a) of this title. * * Section 70(c) : “(c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of frauds, usury, and other personal defenses; and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee. The trustee shall have as of the date of bankruptcy the rights and powers of: (1) a creditor who obtained a judgment against the bankrupt upon the date of bankruptcy, whether or not such a creditor exists, and (2) a creditor who on the date of bankruptcy obtained an" }, { "docid": "18007434", "title": "", "text": "provision of the Bankruptcy Act at that time provided: (c)(1) The following liens shall be invalid against the trustee: * * -Jf * sk sjs (B) every statutory lien which is not perfected or enforceable at the date of the bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law— The Bankruptcy Act, § 67(c)(1)(B), 11 U.S.C. § 107(c)(1)(B) (1976) (emphasis added), repealed by Pub.L, No. 95-598, § 401, 92 Stat. 2683 (1978). The Fifth Circuit, construing the provision in italics above, stated: the lien is valid against the receiver if: (1) the lien is valid against a creditor who obtained a judgment against the bankrupt on the date of the bankruptcy [i,e., it is not invalid under 11 U.S.C. § 110(c) (1976) (repealed in 1978)]; (2) the lien must be perfected to be valid against a subsequent bona fide purchaser; and (3) the lien is actually perfected in the manner provided by state law. 576 F.2d at 1239-40. The court then held that it was “readily apparent” that the second and third of these requirements were met: Georgia law is settled that a lien will not be valid against a bona fide purchaser until notice of the claim of lien has been filed____ Additionally, the appellee properly filed its notice of claim of lien within the time prescribed by the applicable Georgia statute. Id. at 1240 (citations omitted). The court went on to find that the lien would be valid against a judgment creditor and thus met the requirements of 11 U.S.C. § 107(c)(1)(B) (1976) (repealed in 1978), to be valid against the" }, { "docid": "15894884", "title": "", "text": "WALLACE, Circuit Judge. The order under review stays the prosecution of an action in the state court to enforce a mechanic’s lien of the Van Kannel Revolving Door Company against the real estate known as the “St. Regis Hotel Property.” The Van Kannel Revolving Door Company furnished materials used in constructing the building to Grissler & Son; the latter being subcontractors under W. & J. Sloane, who were the contractors with the owner. December 8, 1903, creditors filed a petition to have Grissler & Son adjudicated bankrupts. December 10, 1903, the Van Kannel Revolving Door Company filed its notice of lien in the office of the clerk of the county of New York; the same having been filed within 90 days of the furnishing of the materials. January 4,1904, Grissler Si Son were adjudicated bankrupts. Subsequently, and after a trustee had been appointed in the bankruptcy proceeding, the Van Kannel Revolving Door Company was required, by written notice from the contractors, to commence an.action to enforce its lien, and thereupon brought the action, the prosecution of which has been stayed, making th”e owner, the contractors, and various other parties appearing of record as lienors upon the property, defendants, including the bankrupts and their trustee in bankruptcy. The trustee, after appearing in the action and obtaining several extensions of time to answer, applied to the bankruptcy court, and obtained the order under review, staying all proceedings in the action. The application of the trustee was opposed by the plaintiff in the action and by various defendants in the action. As no opinion was delivered by the court, we are not advised of the reasons which influenced the granting of the application. The trustee, in making the application, seems to have acted upon the theory that he obtained a priority over the Van Kannel Revolving Door Company because the latter’s notice of lien was not filed until after the filing of the petition for adjudication of bankruptcy. The decision of this court in Re Roeber, 9 Am. Barikr. Rep. 303, 121 Fed. 449, 57 C. C. A. 565, that a trustee in" }, { "docid": "23685945", "title": "", "text": "four months prior to the filing of the petition initiating a proceeding under this title by or against him. “(c) (1) The following liens shall be invalid against the trustee: (A) every statutory lien which first becomes effective upon the insolvency of the debtor, or upon distribution or liquidation of his property, or upon execution against his property levied at the instance of one other than the lienor; (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of Section 70 of this Act and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law: and provided further, That if applicable lien law requires a lien valid against the trustee under section 70(c) of this title to be perfected by the seizure of property, it shall instead be perfected as permitted by this subdivision by filing notice thereof with the court. * * *» Section 70(c): “(c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of frauds, usury, and other personal defenses; and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee. The trustee shall have as of the date of bankruptcy the rights and powers of: (1) a creditor who obtained a judgment against the bankrupt upon the date of bankruptcy whether or not such a creditor exists, (2) a creditor who upon the date of bankruptcy obtained an execution returned unsatisfied against the bankrupt, whether or not such a creditor exists, and (3) a creditor who upon the date of bankruptcy obtained a lien" }, { "docid": "18007433", "title": "", "text": "purchaser” by definition has no notice of other parties’ claims or rights to the property he is purchasing. See Black’s Law Dictionary 161 (5th ed. 1979). Therefore, WWG concludes, it must be treated as a purchaser without notice of United’s lien and as such it defeats United’s lien under Georgia law. The relation back provisions of the Georgia lien statutes, WWG notes, do not operate against a true bona fide purchaser without notice. The issue before this court was addressed by the Fifth Circuit in In re Mar ietta Baptist Tabernacle, 576 F.2d 1237 (5th Cir.1978), which arose under the old Bankruptcy Act. In that case, a mechanic’s lien claimant performed services on the debtor’s property prior to the debtor’s filing a Chapter 11 bankruptcy petition. Like United, the lien claimant perfected the lien by filing a notice of claim after the bankruptcy proceedings began but within the time allowed by state law. The Fifth Circuit had to determine whether the lien was valid against the receiver in bankruptcy under the Bankruptcy Act. The pertinent provision of the Bankruptcy Act at that time provided: (c)(1) The following liens shall be invalid against the trustee: * * -Jf * sk sjs (B) every statutory lien which is not perfected or enforceable at the date of the bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law— The Bankruptcy Act, § 67(c)(1)(B), 11 U.S.C. § 107(c)(1)(B) (1976) (emphasis added), repealed by Pub.L, No. 95-598, § 401, 92 Stat. 2683 (1978). The Fifth Circuit, construing the provision in italics above, stated: the lien is valid against the" }, { "docid": "3211666", "title": "", "text": "in the amount of $957.40 is a secured claim under sections 67(c)(1)(B) and (e) (3) of the Bankruptcy Act, 11 U.S. C. §§ 107(c)(1)(B) and (e)(3), and is to be satisfied from the proceeds of the sale of the personal property subject to the lien. The foregoing constitutes the Court’s findings of fact and conclusions of law in accordance with Rule 52(a), Federal Rules of Civil Procedure. The record is remanded to the Referee for action consistent with this opinion. . Section 67(b), (c) (1) (A) & (B), and (c) (3): “(b) The provisions of section 96 of tins title to the contrary notwithstanding and except as otherwise provided in subdivision (c) of this section, statutory liens * * * for taxes * * * to any State or any subdivision thereof, created or recognized by the laws of the United States or any State, may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition initiating a proceeding under this title by or against him. “(c) (1) The following liens shall be invalid against the trustee: (A) every statutory lien which first becomes effective upon the insolvency of the debtor, or upon distribution or liquidation of his property, or upon execution against his property levied at the instance of one other than the lienor; (B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision (c) of section 110 of this title and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law: And provided further, That if applicable lien law requires" }, { "docid": "8170184", "title": "", "text": "and enforcement, these liens must be said to have lapsed and cannot now be recognized.” In the case of In re Kerby Dennis Co. (D. C.) 94 Fed. 818, Judge Seaman also held that the assertion of such a lien in bankruptcy proceedings was equivalent to bringing a suit in the state court to preserve the lien. He said: “With the lien kept alive and identified as the statute directs, I have no doubt this court could furnish a remedy equivalent to the action in the state court.” In this particular the equivalent act preserves the lien created by a state statute. In the former particular it gives rise to the lien or preferred right contingently provided for by the state statute. Possibly it is upon some such ground as this that the ruling in the ease of In re Grissler, 136 Fed. 754, 69 C. C. A. 406, is to be placed. It was there held that in New York, the peculiarity of whose mechanic’s lien law has been heretofore referred to, the mechanic 5s entitled to a preference in bankruptcy if he files the notice of his lien within the statutory period, even though he does not do so prior to the institution of the bankruptcy proceedings. In referring to the decision of the New York Court of Appeals in Kane Co. v. Kinney, supra, Judge Wallace said”: “The court distinctly decided that the Inchoate right acquired by the material-men when perfected by the filing of his notice of lien, though filed subsequent to a general assignment of the contractor for the benefit of creditors, was superior to the right acquired by the assignee. A trustee in bankruptcy of the contractor or subcontractor stands in no better position than would the general assignee.” In the earlier case of In re Roeber (D. C.) 121 Fed. 444, the same court had held otherwise; but this decision was overruled by the later case. Somewhat of the same idea seems to have been controlling in the Massachusetts case of Jones v. Arena Pub. Co., 171 Mass. 22, 50 N. E. 15." }, { "docid": "15894890", "title": "", "text": "the bankrupt act, be perfected by the claimant, if he sees fit to do so within the statutory time, it would seem plain that the trustee’s title is impressed with the priority which the claimant is thus at any time within the 90 days prescribed by the statute for filing his notice of lien at liberty to secure. In the recent case of Crane v. Pneumatic Signaling Company, in the Appellate Division of the Supreme Court of New York (87 N. Y. Supp. 917), it was directly adjudged that the trustee in bankruptcy of the contractor or subcontractor stands in no better position than would the general assignee, and that, although the notice of lien is not filed until subsequent to the proceeding in bankruptcy, if filed within the three months the materialman has priority over the trustee. It would be most unfortunate to have a conflict of decision between the state courts and the courts of bankruptcy in respect to the meaning and effect of a statute affecting the titles to real estate, and, if this situation can be averted by following the decision of the highest court of the state which settles the previously doubtful question of statutory construction, this court ought not to refuse even though that decision may seem to us to be illogical and inconsistent with the previous decisions of that court. There is no good reason why the action brought in the appropriate state court to determine the rights of the various lien claimants upon the property which is not in the custody of the bankruptcy court should be stayed because the bankrupts and their trustees have been made parties to that action in order 1;o determine whether the bankrupts also had a lien to which the trustee has succeeded, and there is no provision in the bankrupt act which authorizes the court to stay such an action. The trustee is, of course, vested with any right to a chose in action which belonged to the bankrupts at the date of the adjudication in bankruptcy; but that right is' merely one to enforce a" }, { "docid": "20559195", "title": "", "text": "point to the ease of Walker v. Valley Plumbing, Inc., 370 S. W.2d 136 (Ky.1963). Walker holds that bona fide purchasers of real estate upon which a new home has been built are not subject to having the real estate encumbered by a valid lien by a subcontractor to the builder when that subcontractor returns some six months after the purchase of the home has been completed and switches the cold and hot water connections which were erroneously located and then files a notice of lien shortly thereafter, the purchasers having no actual knowledge that the contractor had not paid the subcontractor for his plumbing work prior to their purchase of the home. The Court is of the opinion that the language of 67(c)(1) and (c)(1)(B) of the Bankruptcy Act, 11 U.S.C. § 107(c)(1) and (c)(1)(B) which are as follows are controlling: “(c) (1) The following liens shall be invalid against the trustee: ****** “(B) every statutory lien which is not perfected or enforceable at the date of bankruptcy against one acquiring the rights of a bona fide purchaser from the debtor on that date, whether or not such purchaser exists: Provided, That where a statutory lien is not invalid at the date of bankruptcy against the trustee under subdivision e of section 70 of this Act [11 U. S.C. § 110(c)] and is required by applicable lien law to be perfected in order to be valid against a subsequent bona fide purchaser, such a lien may nevertheless be valid under this subdivision if perfected within the time permitted by and in accordance with the requirements of such law * * *» This provision of the Bankruptcy Act, Title 11 U.S.C. § 107(c)(1)(B), by reason of a 1966 amendment was enacted in place of 11 U.S.C. § 107(b) which provided in substance that statutory liens in favor of mechanics created by the laws of any state may be valid against the trustee. Where by such laws liens are required to be perfected and arise but are not perfected before bankruptcy, they nevertheless may be valid if perfected within the time" }, { "docid": "10329899", "title": "", "text": "was said in the former of these decisions: “To emitle a claimant to its benefits, the directions of the statute must be substantially observed. If they are not, the lien cannot be secured, and the court has no power or authority to sustain the proceeding; for a substantial compliance with the requirements of the statute is necessary to confer jurisdiction.” We are constrained io differ from the opinion of the court below that the lien was void, as against the trustee in bankruptcy, irrespective of the insufficiency of the notice. The statute gives a lien for. the value-' or the agreed price of the labor and materials from the time of the filing of the notice, authorizes the notice to be filed at any time during the progress of the work or within 90 days thereafter, provides that if an action shall not be brought to enforce the lieu within a specified time the lien shall be discharged, and prescribes the procedure in an action to enforce the lien. When che notice is filed, provided the filing is within the period prescribed, the lien binds the property to priority of payment in favor of the lienor for any indebtedness for improving the property due from the owner, as against subsequently acquired rights and titles. It will be observed that, although the lieu is,not created until the filing of the notice, this is an act optional with the mechanic or material man, and, if he chooses, he can perfect a lien day by day concurrently with the progress of the work. A trustee in bankruptcy cannot acquire a better title than the bankrupts had, except as to property which has been transferred contrary to the provisions of the bankrupt act, and takes the estate subject to all liens and incumbrances other than those enumerated in section 67. That section denies the privileges of a lien to claims which, for want of record or for other reasons, would not have been valid as against creditors if there had been no bankruptcy, and enumerates the liens and incumbrances which are dissolved by the" } ]

[ { "docid": "22557430", "title": "", "text": "not the- avowed object, of which, was to nullify the operation of the aforesaid act of . Congress. This was so in Ex parte Jenkins. The United States marshal, was arrested on a warrant issued by a state magistrate while he was executing a warrant issued under said law of-Congress. He was brought before the Circuit Court of the United States. for the Eastern District of Pennsylvania, on a writ of habeas corpus, and was discharged upon the ground that the fugitive slave law, having been enacted in pursuance of the Constitution of the United States,-was paramount to the law: of Pennsylvania in conflict with it, and that the marshal, being in custody for an’ act done in pursuance of that law of Congress, and in execution of process under it, was entitled to his discharge. It is so manifest that that case was within the provision of section 753 of the Revised Statutes that further comment is unnecessary; and the same may be said of all- of the other decisions of the circuit and district courts. In every one of them the party discharged was in custody either for an act done in pursuance of an express statute of Congress, or in the execution of a decree, order, or process of a conrt, or the custody was in violation of the Constitution of the United States. ¥e stated at the outset of these remarks that we raised no question upon the discussion of the history of ’the legislation .of Congress upon the subject of the writ of habeas corpus. \"We think, however, it is pertinent in this connection to inquire what w:as the necessity for any such legislation at all if the theory contended for as to the sufficiency of the self-executing powers of the executive and judicial departments of the government to protect all the agencies and instrumentalities of the federal government is correct. Why could- not President. Jackson, in 1833, as the head of the executive department, invésted with the power and charged with the duty to take care that the laws be faithfully executed and to" } ]

[ { "docid": "23105299", "title": "", "text": "U. S. 284, consists in the fact that the Federal officer proceeded against in the courts of the State may, upon conviction, be imprisoned as a means of enforcing the sentence of a fine, and thus the operations of the Federal government might in the meantime be obstructed. This is such a case. In Ex parte Royall, it was stated by Mr. Justice Harlan, in naming some of the exceptions to the general rule there laid down, that “When the petitioner is in custody by state authority for an act done or omitted to be done in pursuance of a law of the United States or of an order, process or decree of a court or judge thereof; or where, being a subject or citizen of a foreign State, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign State or under color thereof, the validity and effect whereof depend upon the law of nations ; in such and like cases of urgency, involving the authority and operations of the General Government or the obligations of this country to or its relations with foreign nations, the courts of the United States have frequently interposed by writs of habeas corpus and discharged prisoners who were held in custody under state authority.” For the reasons herein given we think the order of the Circuit Court of Appeals, affirming the Circuit Court, was right, and it must be Affirmed. Me. Justice Hablan concurred in the judgment; but not in all the reasoning of the opinion. The Chief Justice took no part in the consideration or decision of this case." }, { "docid": "22846785", "title": "", "text": "Ex parte Kearney, 7 Wheat. 38, 42; New Orleans v. Steamship Company, 20 Wall. 387, 392. But the appellate jurisdiction of this court from the state court extends to a final judgment or decree in any suit, civil or criminal, in the highest court of a State where a decision in the suit could be had, against a title, right, privilege or immunity, specially set up and claimed under the Constitution or a treaty or statute of the United States. Rev. Stat. § 709. Consequently, if the order of the Court of Criminal Appeals of the State of Texas, being the highest court of the State having jurisdiction of the case, dismissing the writ of habeas corpus issued by one of its judges, and remanding the prisoner, to custody, denied to him any right specially set up and claimed by him under the Constitution, laws or treaties of the United States, it is doubtless reviewable by this court on writ of error. Newport Light Company v. Newport, 151 U. S. 527, 542; Pepke v. Cronan, 155 U. S.100, 101. We perceive no reason for holding that any such rights were denied by the judgment of the Court of Criminal Appeals, in view of the facts appearing in the record and the grounds on which that court proceeded as disclosed by its opinion. Counsel asserts that the rights claimed under the Constitution of the United States were the right to due process of law, and the right to the equal protection of the laws. The right to the equal protection of the laws was certainly not denied, for it is apparent that the same law or course of procedure, which was applied to Tinsley, would have been applied to any other person in the State of Texas, under similar circumstances and conditions; and there is nothing in the record on which to base an inference to the contrary. Was the right to due process of law denied ? If the committing court had jurisdiction of the subject-matter, and of the person, and power to make the order for disobedience to which" }, { "docid": "22235583", "title": "", "text": "Mr. Justice Shiras, after stating the case, delivered the opinion of the court. The appellee has moved the dismissal of the appeal because, as is alleged, the order discharging the prisoner on the writ of habeas corpus was made by a judge, and not by a court; because the order, whether made by a judge or a court, was not final, as the prisoner was discharged only “ pending said injunction,” and was held subject to the further order of the United States Circuit Court, and because there was no certificate from the court below as to the distinct question of jurisdiction involved. It is, indeed, true, as was decided in Carper v. Fitzgerald, 121 U. S. 87, that no appeal lies to this court from an ordeof a Circuit Judge of the United States, and not as a court, discharging the prisoner brought before him on a writ of habeas corpus. But this record discloses that, while the original order was made at chambers, the final order, overruling the return of the sheriff and discharging the prisoner from custody, was the decision of the Circuit Court at a stated term, and therefore the case falls within In re Palliser, 136 U. S. 257, 262. We see no merit in the suggestion that the order discharging the prisoner was not a final judgment. It certainly, if valid, took away the custody of the prisoner from the state court, and put an end to his imprisonment under the process of that court. • That the jurisdiction of the Circuit Court was put in issue by the petition for the writ of habeas corpus and the return thereto, is quite evident. The contention made, that such question has not been presented to us by a sufficiently explicit certificate, we need not consider, for the case plainly involves the application of the Constitution of the United States. The division and apportionment'of judicial power made by that instrument left to the States the right to make and enforce their own criminal laws. And while it is the duty of this court, in the exercise" }, { "docid": "22681687", "title": "", "text": "Me. Justice HaelaN delivered the opinion of the court. After stating the case as above reported, he continued : These cases come here under the act of March 3, 1885, ch. 353, 23 Stat. 437, which so.amends § 764 of the Revised Statutes as to give this court jurisdiction, upon appeal, to review the final decision of the Circuit Courts of the United States in certain specified- cases, including that of a writ of habeas corpus sued out in behalf of a person alleged to be restrained of his liberty in violation of the Constitution. The first question to be considered is whether the Circuit Courts have jurisdiction on habeas corpus to discharge from custody one who is restrained of his liberty in violation of the National Constitution, but who, at the time, is held under State process for trial on an indictment charging him with an offence against the jaws of the..State. The statutory provisions which control the determination of . this question are found in the following sections of the Revised Statutes: “ Sec. 751. The Supreme Court and the Circuit and District Courts shall have power to issue writs of habeas corpus. “ Sec. 752. The several justices and' judges of the said courts,within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. “ Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody undér or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law or treaty of the United States, or of an order, process, or decree of a court or judge thereof; or,is in custody in violation of the Constitution, or of a law or.treaty of the United States; or being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under" }, { "docid": "22446913", "title": "", "text": "within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. “(c) The writ of habeas corpus shall not extend to a prisoner unless— “(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or “ (2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or “(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or “ (4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right'... ; or “(5) It is necessary to bring him into court to testify or for trial.” Art. I, § 9, cl. 2. The habeas corpus provisions of § 14 of the original Judiciary Act, 1 Stat. 81 (1789), were amended by 4 Stat. 634 (1833), 5 Stat. 539 (1842), 14 Stat. 385 (1867), R. S. §§752-753 (1875), and 43 Stat. 940 (1925). R. S. § 716 (1875): “The Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have.power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” R. S. § 751 (1875): “The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus.” R. S. § 752 (1875): “The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.” Actually, the 1842 extension of the Great Writ’s availability to imprisoned applicants, 5 Stat. 539, had imposed a" }, { "docid": "14298476", "title": "", "text": "examine the proceedings in the municipal court, and to dispose of the petitioner as law and justice require rests upon sections 751, 752, 753, and 761 of the Revised Statutes of the United States (Comp. St. §§ 1279-1281, 1289), which, so far as here pertinent, provide: . “Sec. 751. The Supreme Court and the (circuit and) district courts shall have power to. issue writs of habeas corpus. “Sec. 752. The several justices and judges of the said courts, within their respective jurisdictions, • shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. “Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he * * * is in custody in violation of the Constitution * * * of the United States; * * * “Sec. 761. The court, or justice, or judge shall proceed in a summary way to determine the facts of the ease, by hearing the testimony and arguments, a'nd thereupon to dispose of the party as law and justice require.” The scope of the authority thus conferred by Congress upon the federal courts to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty where the petitioner is imprisoned under authority of a state has been many times considered by the Supreme Court. In Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868, it was declared that Congress intended to invest the courts of the Union and the justices and judges thereof with power, upon writ of habeas corpus, to restore to liberty any person within their respective jurisdictions who is held in custody, by whatever authority, in violation of the Constitution of the United States, and held that the fact that a petitioner is imprisoned under the authority of a state cannot affect the question of the power or jurisdiction of a federal court to inquire into the cause of his commitment and to discharge him if he is restrained" }, { "docid": "22727535", "title": "", "text": "decision of an inferior court upon a habeas corpus issued by it. So, in. Ex parte Jackson (96 U. S. 727), in which the question of our power to issue the writ was raised, and the petition only averred that the Circuit Court had exceeded its jurisdiction, this court considered, the merits of the case, without regard to the fact that there had been no habeas corpus in the court below. And in Ex parte Lange (18 Wall. 163) it was ruled, after an examination of authorities, that Avhen a prisoner shows that he is held under a judgment of a Federal court, given without authority of laAV, this court, by writs of habeas corpus and certiorari^ will look into the record, so far as to ascertain whether that is the fact, and, if it is found to be so, will discharge him. Mr. Justice Miller said, in delivering the opinion: “The authority of the court in such a case, under the Constitution of the United States, and the fourteenth section of the Judiciary Act of 1789, to issue this writ and to examine the proceedings in the inferior court, so far as may be necessary to ascertain whether that court has exceeded its authority, is no longer an open question.” While, therefore, it is true that a writ of habeas corpus cannot generally be made to subserve the purposes of a Avrit of error, yet Avhen a prisoner is held without any lawful authority, and by an order beyond the jurisdiction of an inferior Federal court to make, this court will, in favor of liberty, grant the writ, not to review the Avhole case, but to examine the authority of the court below to act at all. Our conclusion, then, is that we are empoAvered to grant the writ in such a case as is presented in these petitions. We come now to the merits of the case. The indictment and bench-warrant, in virtue of which the petitioner Coles has been arrested and is held in custody, have their justification, — if any they have, — in the act" }, { "docid": "22681705", "title": "", "text": "in which he is indicted.; that discretion, however, to be subordinated to any special circumstances requiring immediate action. \"When the State court shall have finally acted upon the case, the Circuit Court has still a discretion whether, under all the circum- stances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the State, or .whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of the United States. The latter was substantially the course adopted in Ex parte Bridges, 2 Woods, 428. The prisoner was indicted and convicted in one of the courts of Georgia for perjury committed in ah examination before a United States commissioner under what is known as the Enforcement Act of Congress. He was discharged upon habeas corpus, sued out before Mr. Justice Bradley, upon the ground that the State court had no jurisdiction of the case, the offence • charged being one which, under the laws of the United States, was exclusively cognizable in the Federal courts. Adverting to the argument that where a defendant has been regularly indicted, tried, and convicted in a State court, his only remedy was to carry the judgment to the State court of last, resort, and thence’ by writ of error to this court, he said: “ This might be so if the proceeding in the State court was merely erroneous; but where it is void for want of jurisdiction, habeas corpus will lie, and may be issued by any court or judge invested with .supervisory jurisdiction in such . case. Ex parte Lange, 18 Wall. 163.” It was further ob- ' served, in the same case, that while it might appear unseemly ■that a prisoner, after conviction in a State court, should be set at liberty by a single judge on habeas corpus, there was no escape from the act of 1867, which invested such judge with power to discharge when the. prisoner was restrained of his liberty in violation of a law" }, { "docid": "23105298", "title": "", "text": "of In re Waite, supra, and those cited by the learned circuit judge in this case fully support the view we have taken herein. The cases of Tennessee v. Davis, 100 U. S. 257; Ex parte Siebold, 100 U. S. 371, 394, 395; In re Loney, 134 U. S. 372; In re Neagle, 135 U. S. 1, all concur in upholding the paramount authority of the Federal government under circumstances similar, in effect, to those set forth in this record. Some of the same authorities also show that this is one of the cases where it is proper to issue a writ of habeas corpus from the Federal court instead of awaiting the slow process of a writ of 'error from this court to the highest court of the State where a decision could be had. One of the grounds for making such a case as this an exception to the general rule laid down in Ex parte Royall, 117 U. S. 241; Whitten v. Tomlinson, 160 U. S. 231, and Baker v. Grice, 169 U. S. 284, consists in the fact that the Federal officer proceeded against in the courts of the State may, upon conviction, be imprisoned as a means of enforcing the sentence of a fine, and thus the operations of the Federal government might in the meantime be obstructed. This is such a case. In Ex parte Royall, it was stated by Mr. Justice Harlan, in naming some of the exceptions to the general rule there laid down, that “When the petitioner is in custody by state authority for an act done or omitted to be done in pursuance of a law of the United States or of an order, process or decree of a court or judge thereof; or where, being a subject or citizen of a foreign State, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign State or under color thereof, the validity and effect" }, { "docid": "22830559", "title": "", "text": "United States, two remedies are open to him for relief in the federal courts — he may either take his writ of error from this court, under § 709 of the Revised Statutes, and have his case reexamined in that way on the question of whether the state court has denied him any right, privilege or immunity guaranteed him by the Constitution and laws of the United States; or he may apply for . a writ of habeas corpus to be discharged from custody under such conviction, on the ground that the state court had no jurisdiction of either his person or the offence charged against him, or had, for some reason, lost or exceeded its jurisdiction, so as to render its judgment a nullity; in which latter proceeding the federal courts could not review the action or rulings of 'the state court, which could be reveiwed by this court upon a writ of error. ..But, as already stated, the Circuit Court has a discretion as to which of these remedies it will require the petitioner to adopt. This was expressly ruled in Ex parte Royally supra, and has been repeatedly followed since that case. In the recent case of In re Wood, 140 U. S. 278, 290, after reaffirming the rule laid down in Ex parte Royall, the court added: “After the final disposition of the case by the highest court of the State, the Circuit Court, in its discretion, may put the party who has been denied a right, privilege or immunity claimed under the Constitution or laws of the United States to his writ of error from this court, rather than interfere by writ of habeas corpus.” We adhere to the views expressed in that case. It is certainly the better practice, in cases of this kind, to put the prisoner to his remedy by writ of error from this court, under section 709 of the Revised Statutes, than to award him a writ of habeas corpus. For, under. proceedings by writ of error, the validity of the judgment against him can be called in question, and" }, { "docid": "23460860", "title": "", "text": "judgments of the Supreme Court of the District of Columbia m criminal cases or on habeas corpus. In re Heath, Petitioner, 144 U. S. 92; Cross v. United States, 145 U. S. 571; Cross v. Burke, 146 U. S. 82. But it is .contended. that under section 8 of the act-of February 9,1893, 27 Stat. 434, c. 74, establishing a Court of Appeals for the District of Columbia, the judgments of the Supreme Court of the District re viewable in the Court of Appeals may be reviewed ultimately in this court even in criminal cases, where the validity of a statute of, or an authority exercised under, the United States is drawn in question. We do not feel constrained, however, to determine’how this may be, as we are of opinion that the application must be denied on another ground. In New York v. Eno, 155 U. S. 89, the circumstances under which a court of the United States should, upon habeas corpus, discharge one held in custody under the process of a state court were considered, as they had previously been in Ex parte Royall, 117 U. S. 241, and the views expressed in the latter case reiterated with approval. It was held that Congress intended to invest the courts of the Union and the justices and judges thereof with power upon writ of habeas corpus to restore to liberty any person within their respective jurisdictions held in custody, by. whatever authority, in violation of the Constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted in a state court against a prisoner on account of the very matter presented for determination by the writ of habeas corpus; but that the statute did not imperatively require the Circuit Court by that writ to wrest the prisoner from the custody of the state officers in advance of his trial in the state court; and that while the Circuit Court had the power to do so and could discharge the" }, { "docid": "22830558", "title": "", "text": "the former case we held that the judgment was void, and released the prisoner accordingly; in the latter we held that the judgment, whether erroneous or not, was not void because the court had jurisdiction of the cause, and we refused to interfere.” The reason of this rule lies in the fact that a habeas corpus proceeding is a collateral attack of a civil nature to impeach the validity of a judgment or sentence of another court in a criminal proceeding, and it should, therefore, be limited to cases in which the judgment or sentence attacked is clearly void by reason of its having been rendered without jurisdiction, or by reason of the court’s having exceeded its jurisdiction in the premises. It is said, in Ex parte Roy all, supra, that after a prisoner is convicted of a crime in the highest court of the State in which a conviction could be had, if such conviction was obtained in disregard or in violation of rights secured to him by the Constitution and laws of the United States, two remedies are open to him for relief in the federal courts — he may either take his writ of error from this court, under § 709 of the Revised Statutes, and have his case reexamined in that way on the question of whether the state court has denied him any right, privilege or immunity guaranteed him by the Constitution and laws of the United States; or he may apply for . a writ of habeas corpus to be discharged from custody under such conviction, on the ground that the state court had no jurisdiction of either his person or the offence charged against him, or had, for some reason, lost or exceeded its jurisdiction, so as to render its judgment a nullity; in which latter proceeding the federal courts could not review the action or rulings of 'the state court, which could be reveiwed by this court upon a writ of error. ..But, as already stated, the Circuit Court has a discretion as to which of these remedies it will require the" }, { "docid": "15918446", "title": "", "text": "Mr. Justice Peckham, after making the‘foregoing statement, delivered the opinion of the court. After the jurisdiction of the Circuit Court of the United States had attached by the filing of the bill of complaint in the case already mentioned, of the Southern Railway Company v. McNeil and others, members of the Corporation Commission, and after the issuing and service of the injunction, as above stated, the defendant Wood, acting under and in obedience to the provisions of such injunction, sold the railroad tickets at the usual price and at the same time complied with the conditions contained in the injunction, by giving the coupons for the difference in price, and while so complying with the terms of such injunction was arrested and proceeded against criminally for disobedience of the act fixing rates. Being detained in custody by virtue of this conviction by one of the police courts of the State, he had the right to apply for a writ of habeas corpus to the United States Circuit Judge, and that judge had power to issue the writ and discharge the prisoner under § 753 of the Revised Statutes of the United States (1 U. S. Comp. Stat., p. 592), as he was then in custody for an act done pursuant to an order, process or decree of a court or judge of the United States. See In re Neagle, 135 U. S. 1. The writ being properly issued, the judge had the right, and it was his duty, to examine into the facts, and he had jurisdiction to discharge the petitioner under the circumstances stated. The other questions raised herein have been sufficiently discussed in Ex parte Young, just decided, and require no further attention. For the reasons given in that opinion, the order appealed from herein must be Affirmed. Mr. Justice Harlan,' dissenting. In my judgment the appellee should have been put to his writ of error for the review of the judgment against him in the highest court of the State, competent under the state laws to reexamine that judgment — thence to this court to inquire whether" }, { "docid": "22348851", "title": "", "text": "Mr. Chief Justice Fuller delivered the opinion of the' court: .This is an application for a writ of error to bring up for .review a judgment of the Supreme Court of the State of New York, affirming an order of the county judge of Cayuga County, remanding the relator to the custody of the warden of the .State Prison at Auburn, upon a hearing upon habeas corpus. The judgment of the Supreme Court was entered upon a judgment of the Court of Appeals of the State of New York, affirming a previous order of the Supreme Court. The application was originally presented to Mr. Justice Blatchford, and, upon his suggestion, was permitted to be made in open court, and has been heard upon full argument. A writ of error to. the highest court of a State is not 'allowed as of right, and ought not to be sent out when the court in session, after hearing, is of opinion that it is apparent upon the face of the' record that the issue of the writ could only result in the affirmance of the judgment. Spies v. Illinois, 123 U. S. 131. The writ of habeas corpus was allowed on the 11th day of June, 1889, and made returnable before the county judge of Cayuga County. The petition was filed by one Hatch, and stated “ that William Kemmler, otherwise called John Hort, is imprisoned or restrained ■ in his liberty, at-Auburn State Prison, in the city of. Auburn, county of Cayuga, State of New York, by Charles F: Durston, agent and warden of Auburn State Prison, having charge thereof. That he has not been committed and is not detained by virtue of any judgment, decree, final order or process issued by a court or judge of the United States, .in a case where such courts or judges have'exclusive jurisdiction under the laws of the United States, or-have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court; nor is he committed or detained by virtue of the final judgment or decree of a competent tribunal of civil" }, { "docid": "22055550", "title": "", "text": "criminal statutes of a State, and who contended that he was held in violation of the Constitution of the United States, “must ordinarily first take his case to the highest court of the State, in which the judgment could be reviewed, and thence bring it, if unsuccessful there, to this court by writ of error; that only in certain exceptional cases, of which the present is. not one, will a Circuit Court of the United States, or this court upon appeal from a Circuit Court, intervene by writ of habeas corpus in advance of the final action by the highest court of the State.” So, in the recent case of Drury v. Lewis, 200 U. S. 1, it was said that in cases of the custody by state authorities of one charged with crime the settled and proper procedure was for a Circuit Court of the United States not to interfere by habeas corpus, “unless in cases of peculiar urgency, and that instead of discharging they will leave the prisoner to be dealt with by the courts of the State; that after a final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom.” Without now expressing any opinion as to the constitutionality of the statute in question, or as to the mode in which it Was administered in the state court, for the reasons stated the judgment of the Circuit Court must be reversed, with directions to set aside the order discharging the appellee, and to enter an order denying the application for a writ of habeas corpus, leaving the appellee in the" }, { "docid": "22830555", "title": "", "text": "corpus was properly refused. While the writ of habeas corpus is' one of the remedies for the enforcement of the right to personal freedom, it will not issue,..as a matter of course, and .it should be cautiously used by the federal courts in reference to state prisoners. Being a civil process it cannot be converted into a remedy for the correction of mere errors of judgment or of procedure in the court having cognizance of the criminal offence. Under the writ of habeas corpus, this court can exercise no appellate jurisdiction over the proceedings of the trial court or courts of the State, nor review their conclusions of law or .fact, and. pronounce them erroneous. The writ of habeas corpus is not a proceeding' for the correction of errors. Ex parte Lange, 18 Wall. 163; Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371; Ex parte Carll, 106 U. S. 521; Ex parte Bigelow, 113 U. S. 328; Ex parte Yarbrough, 110 U. S. 651; Ex parte Wilson, 114 U. S. 417; Ex parte Royall, 117 U. S. 241; In re Snow, 120 U. S. 274; In re Coy, 127 U. S. 731; In re Wight, petitioner, 134 U. S. 136; Stevens v. Fuller, 136 U. S. 468. As ivas said by. this .court, speaking by Mr. Justice Harlan, in Ex parte Royall, 117 U. S. 241, 252, 253, “ where a person is in custody, under process from a state court of original jurisdiction, for an alleged offence against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United Statés, the Circuit Court has a discretion whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the' Circuit Court has still a discretion whether, under all the. circumstances then existing, the accused, if convicted, shall" }, { "docid": "15918447", "title": "", "text": "the writ and discharge the prisoner under § 753 of the Revised Statutes of the United States (1 U. S. Comp. Stat., p. 592), as he was then in custody for an act done pursuant to an order, process or decree of a court or judge of the United States. See In re Neagle, 135 U. S. 1. The writ being properly issued, the judge had the right, and it was his duty, to examine into the facts, and he had jurisdiction to discharge the petitioner under the circumstances stated. The other questions raised herein have been sufficiently discussed in Ex parte Young, just decided, and require no further attention. For the reasons given in that opinion, the order appealed from herein must be Affirmed. Mr. Justice Harlan,' dissenting. In my judgment the appellee should have been put to his writ of error for the review of the judgment against him in the highest court of the State, competent under the state laws to reexamine that judgment — thence to this court to inquire whether any right belonging to him under the Federal Constitution had been violated. He should not have been discharged on habeas corpus. Ex parte Royall, 117 U. S. 241; Minnesota v. Brundage, 180 U. S. 499; Urquhart v. Brown, 205 U. S. 179, and authorities cited in each case. Upon the question as to what is and what is not a suit against the State within the meaning of the Eleventh Amendment, my views are fully expressed in my dissenting opinion in Ex parte Young, just decided. For the reasons there stated I dissent from the opinion and judgment of the court in this case." }, { "docid": "23460861", "title": "", "text": "considered, as they had previously been in Ex parte Royall, 117 U. S. 241, and the views expressed in the latter case reiterated with approval. It was held that Congress intended to invest the courts of the Union and the justices and judges thereof with power upon writ of habeas corpus to restore to liberty any person within their respective jurisdictions held in custody, by. whatever authority, in violation of the Constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted in a state court against a prisoner on account of the very matter presented for determination by the writ of habeas corpus; but that the statute did not imperatively require the Circuit Court by that writ to wrest the prisoner from the custody of the state officers in advance of his trial in the state court; and that while the Circuit Court had the power to do so and could discharge the accused in advance of his trial, it was not bound in every case to exercise such power immediately upon application being made for the writ. The conclusion was that, in a proper exercise of discretion, the Circuit Court should not discharge the petitioner until the state court had finally acted upon the case, when it' could be determined whether the accused, if convicted, should be put to his writ of error, or the question determined on habeas corpus whether he was restrained of his liberty in violation of the Constitution of the United States. These principles were fully discussed in the cases of the appeals of Royall from judgments on habeas corpus of the Circuit Court of the United States for the Eastern District of Virginia, 117 U. S. 241, and in addition thereto Koyall made an original application to this court for a writ of habeas corpus, which was denied upon the grounds stated in the previous cases. Ex parte Royall, 117 U. S. 254. It must be admitted that special reasons of great" }, { "docid": "17655791", "title": "", "text": "of the State, filed his petition in habeas corpus in the Circuit Court of the United States praying release from that custody; The Circuit Court refused to order his discharge, and from its ruling he appealed, and at the same time filed an original petition in this court. Ex parte Royall, 117 U. S. 254. The question was fully considered and it was held that while the Federal courts, Circuit and Supreme, had jurisdiction in the premises, there was a discretion whether in any casé a writ should be issued, Mr. Justice Harlan speaking for the court, saying (p. 251): “That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution. When the petitioner is in custody by state authority for an act done or omitted to be done in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or where, being a subject or citizen of a foreign State, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign State,' or under color thereof, the validity' and effect whereof depend upon the law of nations; in such and like cases of urgency, involving the authority and operations of the Gen eral Government, or the obligations of this country to, oí its ielations with, foreign nations, the courts of the United States have frequently interposed by writs of habeas corpus and discharged prisoners who were held in custody under state authority. ” And again, after commenting on the relations of state and national courts (p. 252): “That these salutary principles may have full operation, and in harmony with what we suppose" }, { "docid": "22300728", "title": "", "text": "prosecution against Carrico to the county court in which the indictment was found. The matter of the discharge of the prisoner by the District Judge upon the writ of habeas corpus may be more briefly disposed of. If that writ had been a writ of habeas corpus cum causa, issued by the clerk of the Circuit Court, as ancillary to a removal of the prosecution into that court, under section 643, the, remanding of the cause would carry with, it the right to the custody of the prisoner. But being, as appears by ..the records annexed to the petition for a mandamus, as well ■'•s by the return to the rule to show cause, an ordinary writ of '-as corpus, issued by the District Judge upon the ground that the prisoner was in custody for an act done in pursuance of a law of the United States, the question whether good cause was shown for his discharge ivas to be judicially determined by the judge, in the exercise of the jurisdiction vested in him by sections 751-753 of the Revised Statutes. His determination might have been reviewed, on the facts as well as the law, by appeal. Rev. Stat. §§ 763-766 ; Acts of March 3, 1885, c. 353, 23 Stat. 437; March 3, 1891, c. 517, §§ 5, 6, 26 Stat. 827, 828; In re Neagle, 135 U. S. 1; Horner v. United States, 143 U. S. 570, 576. But it cannot be reviewed or controlled by writ of mandamus. Ex parte Schwab, 98 U. S. 240; Ex parte Perry, 102 U. S. 183; Ex parte Morgan, 114 U. S. 174; Ex parte Morrison, 147 U. S. 14, 26. It follows that, as to the discharge on the writ of habeas corpus, no order can properly be. made upon this petition; but that, for the reasons above stated, there must be a Writ of mandamus to remand the indictment and prosecution of the Commonwealth of Virginia against Joseph II. Carrico to the county court of Smyth County." } ]

[ { "docid": "3140714", "title": "", "text": "heart of this case. In United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir.1994), we adopted the Second Circuit’s view that the “found in” language of § 1326(a) is synonymous with “discovered in.” Id. (citing United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993)); see also United States v. Gomez, 38 F.3d 1031, 1036 (8th Cir.1994) (noting that this is the prevailing interpretation). In Whittaker, the Second Circuit stated that an alien who gave an alias upon reentering the United States at an official checkpoint had not been “found” because: His documentation, although containing his photograph, used a fictitious name. There was, thus, no way the INS could have identified him as a previously deported alien at the time of his reentry. That is the precise situation Congress sought to cover when, in 1972, it amended the Statute to cover aliens who were found in the United States following their illegal entry. Whittaker, 999 F.2d at 42. Other circuits have agreed that, for an alien to be “found,” the government must have “knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities.” United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996); see United States v. Rivera-Ventura, 72 F.3d 277, 281-82 (2d Cir.1996). Although the government lacked actual knowledge that Mr. Bencomo-Castillo was a previously deported alien before June 5, 1997, he contends that the INS had constructive knowledge in the spring of 1996. First, he asserts, it was unreasonable for the INS not to perform weekend jail checks. Second, he charges the FBI with negligence in failing to process his fingerprints for almost a year. Neither the plain language of the statute nor the relevant case law suggests that the “found in” element of § 1326(a) requires the government to exercise more than reasonable diligence in screening for previously deported aliens. See Santana-Castellano, 74 F.3d at 598. Mr. BencomoCastillo cites Gomez for the proposition that the INS and the FBI negligently failed to discover his status from his fingerprints; yet, Gomez does not govern the outcome of his case. In" } ]

[ { "docid": "17707078", "title": "", "text": "the INS knew of Rendon’s (Mr. Herrera-Ordones’) presence in the United States while he was in the Elkhart County Jail, but did not yet know that he had been deported and had reentered the country. According to the district court, the crime of “being found” was complete at the time Mr. Herrera-Ordones was “discovered” by the INS authorities, and the earliest date of discovery was April 1, 1997, the day that Mr. Herrera-Ordones admitted to an INS agent that he had previously been deported— information that was a necessary predicate to a prosecution under § 1326. After that interview, the INS agent obtained the file on Mr. Herrera-Ordones, which contained his deportation record, and the fingerprint analysis, which established that the person in custody was in fact Mr. Herrera-Or-dones, a previously deported alien. Therefore, the district court held, venue in the Southern District of Indiana was proper. 2. The question of what constitutes being “found” under 8 U.S.C. § 1326 is a matter of first impression in this court, but we have the benefit of well reasoned opinions on this issue from our sister circuits. The prevailing view of those courts is that being “found” means being “discovered” in the United States, and it has two components: First, the INS discovers the physical presence of the deported alien, and second, it ascertains the alien’s identity (as an illegal alien) and status (as one who has reentered after previous deportation). See United States v. Bencomo Castillo, 176 F.3d 1300, 1303 (10th Cir.1999); United States v. Diaz-Diaz, 136 F.3d 572, 677 (8th Cir.1998); United States v. Asibor, 109 F.3d 1023, 1031-32 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 254, 139 L.Ed.2d 182 (1997); United States v. Rivera Ventura, 72 F.3d 277, 282 (2d Cir.1995); United States v. Gomez, 38 F.3d 1031, 1036 (8th Cir.1994). When an alien reenters the country by using an alias, or uses false identification when his illegal presence in the United States is discovered, he is not identifiable and hence not “found.” See Bencomo-Castillo, 176 F.3d at 1303 (citing United States v. Whittaker, 999 F.2d 38," }, { "docid": "17707083", "title": "", "text": "was proper. Mr. Herrera-Ordones submits one more claim. He asserts that, because he was in the Southern District of Indiana involuntarily, by prison transfer, the government lacks sufficient venue to prosecute him there. The district court stated that it did “not believe the defendant’s presence in the specific district where he is charged needs to be a voluntary presence in that district.” R.44 at 48. In our view, whether an alien was in a particular location by choice has no relevance in venue determinations. Venue is proper anywhere in the United States, wherever the previously deported and reentered alien is “found.” See 8 U.S.C. § 1329. Other courts have rejected the defendant’s argument. See United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.) (holding that an “alien who has been deported and voluntarily reenters the United States without authorization has the intent required to support a conviction for being ‘found in’ the United States” even when he is involuntarily incarcerated when he was located), cert. denied, 516 U.S. 845, 116 S.Ct. 134, 133 L.Ed.2d 82 (1995); United States v. Mancebo-Santiago, 886 F.Supp. 372, 374-75 (S.D.N.Y.1995) (finding that venue is proper wherever the defendant was located, even if his presence was involuntary). We reject it as well. B. Acceptance of Responsibility: U.S.S.G. § 3E1.1 Mr. Herrera-Ordones stipulated that he lied to INS agents at least twice during their investigation, refused to make a statement for the presentence report concerning his version of the offense, and in fact gave untruthful or incomplete information to the probation officer writing the PSR. As we chronicled above, the court denied Mr. Herrera-Ordones a downward adjustment under § 3E1.1 on the grounds that he had not demonstrated a moral acceptance of responsibility and had not cooperated with the probation officer’s investigation. The court also noted that the defendant had entered the country illegally twice, had a long and continuous history of serious crime in the United States, under many aliases, and had no apparent legal means of support. We review a sentencing court’s acceptance of responsibility determinations, which are factual findings, for clear error. See" }, { "docid": "17707067", "title": "", "text": "RIPPLE, Circuit Judge. In 1994, Darius Herrera-Ordones was deported from the United States after he had been convicted of several drug offenses. He later reentered the United States without permission and remained here illegally. In 1997, he was convicted for being an alien found in the United States after deportation and illegal reentry. See 8 U.S.C. § 1326(a), (b)(2). At a bench trial, Mr. Herrera-Ordones stipulated to all the essential facts and to the essential elements of the crime. The only issue he contested at trial was whether venue was proper in the Southern District of Indiana. The district court held that venue was proper in the Southern District. It then found Mr. Herrera-Ordones guilty of the charge of illegal reentry and sentenced him to 96 months of imprisonment. On appeal, Mr. Herrera-Ordones challenges the district court’s venue determination and its denial of a two-level reduction for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines. For the reasons set forth in the following opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts The parties have stipulated to these facts. Darius Herrera-Ordones is an alien of Mexican heritage who first entered the United States illegally sometime before September 1988. Under various aliases, he was convicted in the state of Washington three times between June 1989 and May 1992 for drug offenses. The Immigration and Naturalization Service (“INS”) authorities instituted deportation proceedings against him while he was serving his sentence and deported him as an aggravated felon on June 18,1994. Sometime within the following two years, Mr. Herrera-Ordones reentered the United States illegally. On September 21, 1996, he was arrested in Elkhart, Indiana, and jailed on a felony battery charge for beating up his girlfriend. The alias he gave police was “Jose Rendon.” He had falsified his birth date and social security number, as well. On January 27, 1997, INS Special Agent Ray Pachciarz interviewed the defendant at the Elkhart County Jail. Mr. Herrera-Ordones gave the agent another false name (“Jose Aldelber-to Rendon-Contreras”), false social security number, and false place of entry into the" }, { "docid": "18049508", "title": "", "text": "vast majority of states, venue is not simply a prerequisite that the defendant may choose to challenge pretrial; it is viewed as part of the case that the prosecution must prove at trial.”). . Ruelas-Arreguin, 219 F.3d at 1061. . See discussion infra pp. 503-505. . Delgado-Nunez essentially argues this point in his brief, \"Until trial, Delgado did not know whether the Government would present evidence that he was found in the Western District before INS agents found him in 1997.” Reply Br. at 11. . In fact, even on appeal, the government raises no argument that Delgado-Nunez was ever in the Western District of Texas prior to being found in the Northern District in 1997, but instead relies upon its argument (addressed below) that venue was proper in the Western District because Delgado-Nunez was present there, after being \"found in” the Northern District. . Ruelas-Arreguin, 219 F.3d at 1059, 1061 (Although the Ninth Circuit in this case found no waiver, it held that venue was proper in the Southern District of California, because § 1326 is a continuing offense and the defendant before his arrest in Arizona, was transported through the Southern District of California.). . U.S. Const. amend. VI; Fed.R.Crim.P. 18. . United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir.1996). . 8 U.S.C. § 1329. . 18 U.S.C. § 3237. . United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996) (\"[W]e hold that a previously deported alien is 'found in' the United States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.”; \"[A] 'found in' violation is a continuing violation until the date the alien is discovered by immigration authorities...)\" United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir.1999) (\"[A] previously deported alien is 'found in' the United States when his physical presence is discovered and noted by immigration authorities.”); United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir.1999) (A 1326 offense \"begins" }, { "docid": "1789703", "title": "", "text": "factually distinct cases to the effect that an alien is “found” for § 1326 purposes “when immigration authorities could have, through the exercise of diligence typical of law enforcement authorities, discovered the violation” — in other words, when they had constructive knowledge that the alien was in the country illegally. See United States v. Gomez, 38 F.3d 1031, 1037 (8th Cir.1994); see also United States v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir.1999). Garcia argues that the jury was compelled to find that the government had the requisite constructive knowledge as soon as he re-entered the country, and so the limitations period ran several years before his 2003 indictment. This, he says, is because diligent immigration authorities would have realized at the time of his 1995 re-entry that he and “DeLeon” were the same person. The district court, in considering Garcia’s motion to dismiss, accepted the existence of this constructive knowledge theory for purposes of analysis. It examined pre-trial affidavits and other evidence submitted by the government which stated that immigration procedures in place in 1995 did not involve checking the fingerprints of arriving green card holders like Garcia against any database of criminals or of past deportees. The district court found that based on this evidence, and on the fact that Garcia lied about his identity during the deportation process, it could not say as a matter of law that immigration officials exercising ordinary diligence should have known at the time of Garcia’s re-entry that he previously had been deported. We approach the question differently. This court has never adopted the theory that the government • may be charged with constructive knowledge of an alien’s illegal re-entry for purposes of § 1326, and there are certainly good arguments against the theory in this context. We do not, however, resolve the broad question of whether constructive knowledge can be attributed to the government. We hold more narrowly that for statute of limitations purposes in § 1326 prosecutions, there can be no finding of lack of diligence where it is deception by the alien as to his identity that has caused" }, { "docid": "17707082", "title": "", "text": "status with appropriate methodical diligence after learning of his presence in the Elkhart County Jail. The district court made an explicit finding “that no INS official in Indiana either knew or should have known of Mr. Herrera-Ordones’ true identity or prior deportation earlier than April 1, 1997, when he finally admitted that fact.” R.44 at 49. The court refused to determine venue based on what the INS agents “might have been able to determine if they had been acting with greater speed in treating this as the only matter they had before them.” Id. at 50. The record fully supports this finding of fact. Moreover, when we consider the amount of false information Mr. Herrera-Ordones gave the immigration agents, we believe the district court was correct in finding that the INS officials could not have known Mr. Herrera-Ordones’ identity before April 1, 1997, the date on which he gave the agents the truthful information that he had been deported earlier. At that time, Mr. Herrera-Ordones was in Southern Indiana; therefore, his prosecution in that venue was proper. Mr. Herrera-Ordones submits one more claim. He asserts that, because he was in the Southern District of Indiana involuntarily, by prison transfer, the government lacks sufficient venue to prosecute him there. The district court stated that it did “not believe the defendant’s presence in the specific district where he is charged needs to be a voluntary presence in that district.” R.44 at 48. In our view, whether an alien was in a particular location by choice has no relevance in venue determinations. Venue is proper anywhere in the United States, wherever the previously deported and reentered alien is “found.” See 8 U.S.C. § 1329. Other courts have rejected the defendant’s argument. See United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.) (holding that an “alien who has been deported and voluntarily reenters the United States without authorization has the intent required to support a conviction for being ‘found in’ the United States” even when he is involuntarily incarcerated when he was located), cert. denied, 516 U.S. 845, 116 S.Ct. 134, 133 L.Ed.2d" }, { "docid": "17707079", "title": "", "text": "well reasoned opinions on this issue from our sister circuits. The prevailing view of those courts is that being “found” means being “discovered” in the United States, and it has two components: First, the INS discovers the physical presence of the deported alien, and second, it ascertains the alien’s identity (as an illegal alien) and status (as one who has reentered after previous deportation). See United States v. Bencomo Castillo, 176 F.3d 1300, 1303 (10th Cir.1999); United States v. Diaz-Diaz, 136 F.3d 572, 677 (8th Cir.1998); United States v. Asibor, 109 F.3d 1023, 1031-32 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 254, 139 L.Ed.2d 182 (1997); United States v. Rivera Ventura, 72 F.3d 277, 282 (2d Cir.1995); United States v. Gomez, 38 F.3d 1031, 1036 (8th Cir.1994). When an alien reenters the country by using an alias, or uses false identification when his illegal presence in the United States is discovered, he is not identifiable and hence not “found.” See Bencomo-Castillo, 176 F.3d at 1303 (citing United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993)). We are in complete agreement with this assessment of the offense and conclude that an alien is “found” within the meaning of § 1326 when the INS both discovers his presence in the United States and knows that, because of his identity and status, his presence here is illegal. Under this analysis, Mr. Herrera-Ordones was found in the Southern District of Indiana. Mr. Herrera-Ordones also submits that, even if the INS agents did not have actual knowledge, they had constructive knowledge that he was a previously deported alien while he was in the Northern District of Indiana. They knew by March 1997, while he was still in the Elkhart County Jail, he claims, that “Jose Rendon” had given the police false information and had many aliases, including various configurations of the name “Herrera-Ordones.” The Tenth Circuit, in United States v. Bencomo Castillo, 176 F.3d 1300 (10th Cir.1999), recently considered whether an alien who was arrested under an alias was considered “found” once the INS should have discovered that the alien was a" }, { "docid": "1409572", "title": "", "text": "defendant’s presence. See, e.g., United States v. Herrera-Ordones, 190 F.3d 504, 510-11 (7th Cir.1999); United States v. Bencomo Castillo, 176 F.3d 1300, 1303 (10th Cir.1999); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996); United States v. Moses, 148 F.3d 277, 282 (2d Cir.1995). As Clarke correctly points out, § 1326 is silent as to who must find the defendant. A. Imputed Knowledge Clarke argues that the INS, using diligence typical of law enforcement authorities, could have learned of his illegal presence in the United States on July 30, 1996, when Florida police officials confirmed his true identity through fingerprint analysis. To the extent that Clarke contends that the knowledge of Florida police can be imputed to the INS and therefore is sufficient to start the running of the five-year statute of limitations, we reject this argument. Clarke provided no authority for the proposition that a defendant is “found in” the United States when he is discovered by state authorities, and our own research revealed none. The Second Circuit, on the other hand, has expressly rejected such an argument. In United States v. Mercedes, 287 F.3d 47 (2d Cir.2002), the defendant Mercedes was arrested by New York City police officers and convicted on a state charge of manslaughter. Id. at 50. Three years later, INS officials learned of the defendant’s presence in a New York prison, where he was awaiting sentencing. Id. After reviewing INS files and determining that the defendant illegally had reentered the country after being deported, the Government charged the defendant under § 1326. Id. The Second Circuit rejected the notion that the statute of limitations began to run shortly after New York law enforcement officials arrested Mercedes, took his fingerprints, and generated a “rap” sheet, as follows: [I]f any authority was on notice of Mercedes’s illegal presence in the United States in 1993, it was the New York State Department of Corrections, not the INS. Mercedes essentially asks us to adopt a rule that would make the INS responsible for any immigration-related information discovered in state investigations of the hundreds of thousands of prisoners in" }, { "docid": "17707075", "title": "", "text": "governing prosecutions brought under § 1326 is found at 8 U.S.C. § 1329. It states that venue is proper “at any place in the United States at which the violation may occur or at which the person charged ... may be apprehended.” The government must establish, by a preponderance of the evidence, that venue was proper by showing that the offense occurred in the district in which it was brought. We, in turn, review a venue decision by considering “ ‘whether, viewing the evidence in the light most favorable to the government, ... the government proved by a preponderance of the evidence that the crimes occurred’ ” in the district charged. United States v. Brandon, 50 F.3d 464, 469 (7th Cir.1995) (quoting United States v. Males, 715 F.2d 568, 569 (11th Cir.1983)); see also United States v. Sax, 39 F.3d 1380, 1390 (7th Cir.1994). The offense at issue is the crime of illegal reentry into the United States after deportation and without the Attorney General’s consent, in violation of 8 U.S.C. § 1326. Subsection (a)(2) provides that a previously deported alien commits the offense of illegal reentry in any of three ways: He or she (1) enters the United States, (2) attempts to enter the United States, or (3) is at any time found in the United States. In this case, the question we must answer is where Mr. Herrera-Ordones committed the § 1326 offense of being a previously deported alien “found in” the United States — in the Northern or Southern District of Indiana. 1. Mr. Herrera-Ordones insists that he was “found in” the Northern District of Indiana, actually in the Elkhart County Jail. He offers three exhibits in the record that demonstrate his claim: (1) The state probation report showed that the INS knew that Rendon was not Mr. Herrera-Ordones’ real name; (2) the March 14, 1997, judgment from Elkhart Superior Court noted the lies that Rendon made; and (3) the FBI report of March 13, 1997, identified Rendon with the aliases Gorrea, Herrera and Herrera-Ordones. Therefore, Mr. Herrera-Ordones contends, he was known to immigration authorities and was" }, { "docid": "17707076", "title": "", "text": "provides that a previously deported alien commits the offense of illegal reentry in any of three ways: He or she (1) enters the United States, (2) attempts to enter the United States, or (3) is at any time found in the United States. In this case, the question we must answer is where Mr. Herrera-Ordones committed the § 1326 offense of being a previously deported alien “found in” the United States — in the Northern or Southern District of Indiana. 1. Mr. Herrera-Ordones insists that he was “found in” the Northern District of Indiana, actually in the Elkhart County Jail. He offers three exhibits in the record that demonstrate his claim: (1) The state probation report showed that the INS knew that Rendon was not Mr. Herrera-Ordones’ real name; (2) the March 14, 1997, judgment from Elkhart Superior Court noted the lies that Rendon made; and (3) the FBI report of March 13, 1997, identified Rendon with the aliases Gorrea, Herrera and Herrera-Ordones. Therefore, Mr. Herrera-Ordones contends, he was known to immigration authorities and was “found” by the INS in Elkhart County prior to his transfer to the Southern District. Because he was “found in” the Elk-hart County Jail and therefore violated § 1326 in the Northern District of Indiana, he contends that venue was improper in the Southern District of Indiana. The government, in response, points out that Mr. Herrera-Ordones was at the Indiana RDC in Plainfield, Indiana, in the Southern District, when the INS discovered his true identity and determined his status as an alien previously deported after an aggravated felony conviction. For that reason, it asserts, venue was proper in the Southern District. The district court determined that Mr. Herrera-Ordones was “found in” the Southern District of Indiana, for purposes of venue under 8 U.S.C. § 1326, because he was in the Southern District when (1) he admitted to the INS agent (at the April 1, 1997 interview) that he had previously been deported and (2) the INS agents learned (later in April) that he was Mr. Herrera-Ordones, not Rendon or another alias. The court noted that" }, { "docid": "17707077", "title": "", "text": "“found” by the INS in Elkhart County prior to his transfer to the Southern District. Because he was “found in” the Elk-hart County Jail and therefore violated § 1326 in the Northern District of Indiana, he contends that venue was improper in the Southern District of Indiana. The government, in response, points out that Mr. Herrera-Ordones was at the Indiana RDC in Plainfield, Indiana, in the Southern District, when the INS discovered his true identity and determined his status as an alien previously deported after an aggravated felony conviction. For that reason, it asserts, venue was proper in the Southern District. The district court determined that Mr. Herrera-Ordones was “found in” the Southern District of Indiana, for purposes of venue under 8 U.S.C. § 1326, because he was in the Southern District when (1) he admitted to the INS agent (at the April 1, 1997 interview) that he had previously been deported and (2) the INS agents learned (later in April) that he was Mr. Herrera-Ordones, not Rendon or another alias. The court noted that the INS knew of Rendon’s (Mr. Herrera-Ordones’) presence in the United States while he was in the Elkhart County Jail, but did not yet know that he had been deported and had reentered the country. According to the district court, the crime of “being found” was complete at the time Mr. Herrera-Ordones was “discovered” by the INS authorities, and the earliest date of discovery was April 1, 1997, the day that Mr. Herrera-Ordones admitted to an INS agent that he had previously been deported— information that was a necessary predicate to a prosecution under § 1326. After that interview, the INS agent obtained the file on Mr. Herrera-Ordones, which contained his deportation record, and the fingerprint analysis, which established that the person in custody was in fact Mr. Herrera-Or-dones, a previously deported alien. Therefore, the district court held, venue in the Southern District of Indiana was proper. 2. The question of what constitutes being “found” under 8 U.S.C. § 1326 is a matter of first impression in this court, but we have the benefit of" }, { "docid": "17707071", "title": "", "text": "conviction records for Juan Carlos Gorrea, the name under which Mr. Herrera-Ordones was convicted for delivery of heroin in 1992 and deported in 1994. On April 9, 1997, Agent Johnson also had received a file on Darius Herrera-Ordones from the Seattle, Washington INS office. From that file, Agent Johnson learned that Mr. Herrera-Ordones had been deported as an aggravated felon in June 1994. Just a week before receiving that file, on April 1, 1997, Agent Johnson had interviewed Mr. Herrera-Ordones at the RDC. Mr. Herrera-Ordones again gave his false name, Jose Rendon Contreras, but this time admitted that he had previously been deported and had reentered the United States illegally near Brownsville, Texas, in approximately April 1996. Agent Johnson advised him that he was subject to deportation and possibly to prosecution for his illegal reentry after deportation. Following that interview, Agent Johnson completed his investigation by obtaining all previous criminal and deportation records regarding Mr. Herrera-Ordones and obtaining fingerprint analysis to determine if the person in custody known as Jose Ren-don was the same person who had previously been deported as Darius Herrera-Ordones in 1994. On April 19, 1997, Agent Johnson received a fingerprint examiner’s opinion that the fingerprints Agent Johnson had submitted for Jose Aldelberto Rendon, Jose Rendon-Contreras and Darius Herrera-Ordones all belonged to the same person. On August 13, 1997, the INS filed a complaint charging Mr. Herrera-Ordones with one count of violating 8 U.S.C. § 1326(a) and (b)(2) by being an alien who reentered without permission and was found in the United States after deportation for an aggravated felony conviction. B. Determinations of the District Court Mr. Herrera-Ordones stipulated to the essential elements of 8 U.S.C. § 1326: (1) On the date charged in the indictment, he was an alien; (2) he had been arrested and deported from the United States on or about June 18, 1994, through the port of Otay Mesa, California; (3) his deportation was subsequent to a conviction for the commission of an aggravated felony, delivery of heroin, in the State of Washington in 1992; (4) after his deportation, he was found in" }, { "docid": "18049496", "title": "", "text": "offense, commencing with illegal reentry and completed upon being “found” in the United States. Because a § 1326 crime is committed when a defendant illegally reenters the country without authorization and continues until he is “found” by immigration authorities, venue could have been proper anywhere Delgado-Nunez might have been prior to being “found” by the INS. Here, Delgado re-entered the country in Laredo Texas, the Southern District of Texas in late 1996 or early 1997. According to the INS, it first discovered him in the Northern District of Texas in September of 1997. State law enforcement officials moved him to various locations within Louisiana and Texas until 1999, when Agent Niles encountered him and indicted him in San Antonio, Texas, the Western District of Texas. Delgado-Nunez’s whereabouts between late 1996 or early 1997 (when he reentered this country) and September 1997 (when he was first discovered by the INS) are largely unaccounted for. At trial, the government introduced no evidence that during that time Delgado-Nunez was present in the Western District of Texas, as was done in Ruelas-Arreguin. Thus, given the government’s facially proper allegation of venue in the Western District of Texas in the indictment, Delgado-Nunez should not be penalized for putting the government to its burden of proof. Improper Venue Because I find no waiver, I must examine whether venue was, nonetheless, proper in the Western District of Texas. As explained above, venue is constitutionally and statutorily required where the crime or offense is committed. “The clear language in 8 U.S.C. § 1326(a)(2) provides three separate occasions upon which a deported alien may commit the offense: 1) when he illegally enters the United States; 2) when he attempts to illegally enter the United States; or 3) when he is at any time found in the United States.” Section 1329 of Title 8 further provides that “[notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violations may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be" }, { "docid": "18049509", "title": "", "text": "1326 is a continuing offense and the defendant before his arrest in Arizona, was transported through the Southern District of California.). . U.S. Const. amend. VI; Fed.R.Crim.P. 18. . United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir.1996). . 8 U.S.C. § 1329. . 18 U.S.C. § 3237. . United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996) (\"[W]e hold that a previously deported alien is 'found in' the United States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.”; \"[A] 'found in' violation is a continuing violation until the date the alien is discovered by immigration authorities...)\" United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir.1999) (\"[A] previously deported alien is 'found in' the United States when his physical presence is discovered and noted by immigration authorities.”); United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir.1999) (A 1326 offense \"begins at the time the defendant illegally reenters the country and does not become complete unless or until the defendant is found by the INS in the United States.”) . 189 F.3d 785, 789 (9th Cir.1999). . Id. . Id. . Id. . Id. . Id. at 791. See also United States v. Herrera-Ordones, 190 F.3d 504, 510 (7th Cir.1999) (holding that an alien is \"found in” the United States for purposes of venue \"when the INS both discovers his presence in the United States and knows that, because of his identity and status, his presence here is illegal”). . Hernandez, 189 F.3d at 791. . Id. at 792. . Id. at 790. . Id. at 791. . Id. . The Government contends that Delgado's case is not like Hernandez, as here the government was not in continuous custody of the defendant after first discovering him. That is, when Agent Niles encountered Delgado-Nunez in San Antonio, he had be released on bail and had to be re-arrested by the Bexar County Sheriff. The Government therefore suggests" }, { "docid": "17707072", "title": "", "text": "who had previously been deported as Darius Herrera-Ordones in 1994. On April 19, 1997, Agent Johnson received a fingerprint examiner’s opinion that the fingerprints Agent Johnson had submitted for Jose Aldelberto Rendon, Jose Rendon-Contreras and Darius Herrera-Ordones all belonged to the same person. On August 13, 1997, the INS filed a complaint charging Mr. Herrera-Ordones with one count of violating 8 U.S.C. § 1326(a) and (b)(2) by being an alien who reentered without permission and was found in the United States after deportation for an aggravated felony conviction. B. Determinations of the District Court Mr. Herrera-Ordones stipulated to the essential elements of 8 U.S.C. § 1326: (1) On the date charged in the indictment, he was an alien; (2) he had been arrested and deported from the United States on or about June 18, 1994, through the port of Otay Mesa, California; (3) his deportation was subsequent to a conviction for the commission of an aggravated felony, delivery of heroin, in the State of Washington in 1992; (4) after his deportation, he was found in the United States; and (5) the Attorney General of the United States had not expressly consented to his reapplying for admission to the United States. The court, by bench trial, accepted the stipulations of fact, stipulated exhibits and stipulated elements of the crime that the government was required to prove beyond a reasonable doubt. The only issue Mr. Herrera-Ordones contested at trial was venue. Mr. Herrera-Ordones asserted that he was “found in” the Northern District of Indiana because his presence there was known to law enforcement and to the INS. According to the defendant, prosecution should have been instituted there instead of in the Southern District of Indiana. However, the court found that the evidence showed that the INS did not confirm Mr. Herrera-Ordones’ true identity or status until after the state officials had transported him to the Southern District. The court held that venue in the Southern District therefore was proper and ruled that Mr. Herrera-Ordones was guilty of the charge of violating 8 U.S.C. § 1326.- At sentencing, the district court denied Mr." }, { "docid": "17707080", "title": "", "text": "42 (2d Cir.1993)). We are in complete agreement with this assessment of the offense and conclude that an alien is “found” within the meaning of § 1326 when the INS both discovers his presence in the United States and knows that, because of his identity and status, his presence here is illegal. Under this analysis, Mr. Herrera-Ordones was found in the Southern District of Indiana. Mr. Herrera-Ordones also submits that, even if the INS agents did not have actual knowledge, they had constructive knowledge that he was a previously deported alien while he was in the Northern District of Indiana. They knew by March 1997, while he was still in the Elkhart County Jail, he claims, that “Jose Rendon” had given the police false information and had many aliases, including various configurations of the name “Herrera-Ordones.” The Tenth Circuit, in United States v. Bencomo Castillo, 176 F.3d 1300 (10th Cir.1999), recently considered whether an alien who was arrested under an alias was considered “found” once the INS should have discovered that the alien was a prior deportee. According to the defendant, the INS would have known his status if it had performed weekend jail checks or had processed his fingerprints earlier. The Tenth Circuit agreed that immigration authorities should exercise the level of diligence that is typical of law enforcement authorities when investigating whether the presence of an alien is illegal. See Bencomo Castillo, 176 F.3d at 1303; see also United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.), cert. denied, 517 U.S. 1228, 116 S.Ct. 1865, 134 L.Ed.2d 963 (1996); Rivera Ventura, 72 F.3d at 281-82; Gomez, 38 F.3d at 1037-38. However, it rejected the alien’s argument that the INS in his case negligently failed to discover his status. “Neither the plain language of the statute nor the relevant case law suggests that the ‘found in’ element of § 1326(a) requires the government to exercise more than reasonable diligence in screening for previously deported aliens.” Bencomo Castillo, 176 F.3d at 1303. In the case before us, the record demonstrates that the INS agents investigated Mr. Herrera-Ordones’ identity and" }, { "docid": "1409578", "title": "", "text": "dismiss his indictment. AFFIRMED. . We review a district court’s denial of a motion to dismiss the indictment for an abuse of discretion. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.1998). We review the district court’s interpretation and application of statutes of limitations de novo. United States v. Hunerlach, 197 F.3d 1059, 1064 (11th Cir.1999). . If, as here, the alien's removal was subsequent to a conviction for commission of an aggravated felony, \"such alien shall be fined under such Title, imprisoned not more than 20 years, or both[.]” 8 U.S.C. § 1326(b)(2). . We recognize that many of these cases do not involve a statute of limitations issue, but rather involve various other issues, such as proper venue or the application of an amended Sentencing Guidelines provision. Nonetheless, we find these courts’ consistent interpretation and application of the “found in” language of § 1326(a)(2) persuasive. . On this basis, the two cases cited by Clarke in his brief are distinguishable on their facts. In United States v. Gomez, 38 F.3d 1031 (8th Cir.1994) and United States v. DiSantillo, 615 F.2d 128 (3d Cir.1980), the courts concluded that immigration authorities had information that, through the exercise of diligence typical of law enforcement authorities, could have led to the discovery of the defendant's illegal presence. See United States v. Gomez, 38 F.3d 1031, 1038 (8th Cir.1994) (finding that defendant was constructively \"found in” the United States when defendant provided fingerprints to INS on falsified INS form); United States v. DiSantillo (finding that defendant was found and § 1326 offense completed when defendant entered United States through recognized immigration port of entry in New York after being issued visa because immigration authorities knew of his entry and “could have, through the exercise of diligence typical of law enforcement authorities, discovered his violations at that time”). In contrast, Clarke surreptitiously reentered the United States, so that immigration officials were not aware of his reentry." }, { "docid": "17707081", "title": "", "text": "prior deportee. According to the defendant, the INS would have known his status if it had performed weekend jail checks or had processed his fingerprints earlier. The Tenth Circuit agreed that immigration authorities should exercise the level of diligence that is typical of law enforcement authorities when investigating whether the presence of an alien is illegal. See Bencomo Castillo, 176 F.3d at 1303; see also United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.), cert. denied, 517 U.S. 1228, 116 S.Ct. 1865, 134 L.Ed.2d 963 (1996); Rivera Ventura, 72 F.3d at 281-82; Gomez, 38 F.3d at 1037-38. However, it rejected the alien’s argument that the INS in his case negligently failed to discover his status. “Neither the plain language of the statute nor the relevant case law suggests that the ‘found in’ element of § 1326(a) requires the government to exercise more than reasonable diligence in screening for previously deported aliens.” Bencomo Castillo, 176 F.3d at 1303. In the case before us, the record demonstrates that the INS agents investigated Mr. Herrera-Ordones’ identity and status with appropriate methodical diligence after learning of his presence in the Elkhart County Jail. The district court made an explicit finding “that no INS official in Indiana either knew or should have known of Mr. Herrera-Ordones’ true identity or prior deportation earlier than April 1, 1997, when he finally admitted that fact.” R.44 at 49. The court refused to determine venue based on what the INS agents “might have been able to determine if they had been acting with greater speed in treating this as the only matter they had before them.” Id. at 50. The record fully supports this finding of fact. Moreover, when we consider the amount of false information Mr. Herrera-Ordones gave the immigration agents, we believe the district court was correct in finding that the INS officials could not have known Mr. Herrera-Ordones’ identity before April 1, 1997, the date on which he gave the agents the truthful information that he had been deported earlier. At that time, Mr. Herrera-Ordones was in Southern Indiana; therefore, his prosecution in that venue" }, { "docid": "22145661", "title": "", "text": "Adopting the reasoning used in Gomez, we hold that a previously deported alien is “found in” the United States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities. Gomez, 38 F.3d at 1037. Where a deported alien enters the United States and remains here with the knowledge that his entry is illegal, his remaining here until he is “found” is a continuing offense because it is “an unlawful act set on foot by a single impulse and operated by an unintermittent force,” to use the Supreme Court’s language. See Midstate Horticultural Co., 306 U.S. at 166, 59 S.Ct. at 414. That “force” is the alien’s knowledge that his entry is illegal due to his prior deportation, and his apparent intent to remain in the United States. This analysis gives common sense effect to the “found in” language of § 1326, which is obviously intended to extend the definition of the offense to include those situations where the alien is the only one who knows the precise date of his surreptitious entry and knows that he has violated the law in reentering the country after he has been arrested and deported. See Gomez, 38 F.3d at 1035. Additionally, this interpretation gives effect to the entire statutory phrase at issue, rather than just two words, because § 1326 is to include “any alien who ... is at any time found in” the United States. To apply this reasoning to the case at bar, Santana illegally reentered the United States in 1992. His physical presence was not noted by immigration authorities at the time of his reentry, nor could awareness of his presence be reasonably attributed to them until his interview with the INS agent in TDCJ. Thus, he was “found in” the United States when the INS agent discovered his presence and Santana admitted to him that he had previously been deported. The date of his surreptitious entry is irrelevant for sentencing" }, { "docid": "1409573", "title": "", "text": "expressly rejected such an argument. In United States v. Mercedes, 287 F.3d 47 (2d Cir.2002), the defendant Mercedes was arrested by New York City police officers and convicted on a state charge of manslaughter. Id. at 50. Three years later, INS officials learned of the defendant’s presence in a New York prison, where he was awaiting sentencing. Id. After reviewing INS files and determining that the defendant illegally had reentered the country after being deported, the Government charged the defendant under § 1326. Id. The Second Circuit rejected the notion that the statute of limitations began to run shortly after New York law enforcement officials arrested Mercedes, took his fingerprints, and generated a “rap” sheet, as follows: [I]f any authority was on notice of Mercedes’s illegal presence in the United States in 1993, it was the New York State Department of Corrections, not the INS. Mercedes essentially asks us to adopt a rule that would make the INS responsible for any immigration-related information discovered in state investigations of the hundreds of thousands of prisoners in state custody at any given time. Id. at 55. In addition, this construction of “found in” is consistent with this Court’s decision in United States v. Coeur, 196 F.3d 1344 (11th Cir.1999), although involving the application of an amended Sentencing Guidelines provision rather than the statute of limitations. In Coeur, this Court agreed with the Fifth Circuit decision in United States v. Santana-Castellano, 74 F.3d 593 (5th Cir.1996), that a defendant is “found in” the United States when “his physical presence is discovered and noted by the immigration authorities” and concluded, for purposes of calculating criminal history points under U.S.S.G. § 4A1.1, that the defendant “committed” his § 1326 offense when he was discovered by INS officials at the Dade County jail. 196 F.3d at 1346 (11th Cir.1999). Furthermore, a number of the decisions defining § 1326’s phrase “found in,” including our decision in Coeur, arose in circumstances where the defendant was initially detained by state authorities and only later discovered by the INS while in state custody. In all of these decisions, it was" } ]

[ { "docid": "13023529", "title": "", "text": "of alienage for the purpose of the distribution of economic benefits unless that law is necessary to promote a compelling or overriding state interest. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). The equal protection clause will be applied to strike down classifications based on legitimacy at birth if they are not related to a legitimate state interest. Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91, 97-99, 102 S.Ct. 1549, 1553-1554, 71 L.Ed.2d 770 (1982). Classifications on the basis of gender will be held invalid under the equal protection clause unless they are substantially related to an important governmental objective, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976), reh’g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977). And lastly, the equal protection clause will be applied to strike down classifications which are not rationally related to a legitimate governmental purpose. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278, 1308, 36 L.Ed.2d 16, reh’g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973). In the instant case, the plaintiffs allege that the defendants use an administrative classification that manifests itself in discriminatory treatment violative of the equal protection clause. Police protection in the City of Torrington, they argue, is fully provided to persons abused by someone with whom the victim has no domestic relationship. But the Torrington police have consistently afforded lesser protection, plaintiffs allege, when the victim is (1) a woman abused or assaulted by a spouse or boyfriend, or (2) a child abused by a father or stepfather. The issue to be decided, then, is whether the plaintiffs have properly alleged a violation of the equal protection clause of the fourteenth amendment. Police action is subject to the equal protection clause and section 1983 whether in the form of commission of violative acts or omission to perform required acts pursuant to the police" } ]

[ { "docid": "6395878", "title": "", "text": "selling liquor and not permit the same women to act as bartenders in the same establishment, to permit wives and daughters of male license holders to act as bartenders but not women owners or daughters of women owners, constitutes a violation of the Federal Constitution. The plaintiffs rely heavily on Glicker v. Michigan Liquor Control Commission, 6 Cir., 160 F.2d 96. We find that case readily distinguishable from the instant case. It furnishes little support to plaintiffs’ contentions. In the Glicker case the plaintiff alleged discriminatory conduct on the part of the defendant, Michigan Liquor Control Commission. It was the discriminatory action on the part of defendant which allegedly deprived plaintiff of the equal protection of the laws as guaranteed by the Fourteenth Amendment. In passing on the motion to dismiss the complaint, the Court held it was controlled by the allegations of fraudulent, wilful and deliberate discrimination against the plaintiff which required a trial of the facts. The instant case presents totally different questions. No allegations of discrimination by conduct are made. Rather, the only allegations of discrimination arise from the interpretation of the statute attacked. In construing the statute and in determining whether it violates the Fourteenth Amendment, we are not confronted with or controlled by any allegations in this case respecting the conduct of the defendant. Instead, we read the statute and determine its constitutionality. The equal protection clause of the Fourteenth Amendment does not prohibit all classification, per se. Atchison, Topeka & Santa Fe R. Co. v. Matthews, 174 U.S. 96, 103, 19 S.Ct. 609, 43 L.Ed. 909. The rules for determining whether a statute is arbitrary in its classification and consequently denies the equal protection of the laws to those whom it affects have been succinctly stated in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, at page 78, 31 S.Ct. 337, at page 340, 55 L.Ed. 369, Ann.Cas.1912C, 160: “1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of, police laws, but admits of the exercise of a wide scope of" }, { "docid": "2982706", "title": "", "text": "violated her constitutional right to petition the government for redress of wrongs. Count II alleges the theft by Robinson of plaintiff’s property in violation of the Fourth Amendment. Count III alleges that the cutting off of plaintiff from access to the computer constituted “malicious mischief,” a crime and a tort under the law of New York State. Count IV charges that defendants’ demotion constituted a “breach of covenant under the common law,” and also violated Article 1, Section 10(1) of the Constitution, which provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts ...” Count V charges that defendants’ actions in respect of the administrative hearings concerning the Ramadar incident, and plaintiff’s subsequent demotion, violated plaintiff’s rights under the union contract, and also the due process provision of the Fourteenth Amendment. Count VI charges defendants with conspiracy to deprive plaintiff of her civil and constitutional rights. Count VII charges that defendants complained of plaintiff’s tardiness, as well as that of other women, but did not lodge comparable complaints against tardy men, thereby violating the equal protection clause of the Fourteenth Amendment. Count VIII charges defendants with harassment, constituting a criminal action and a civil wrong under state law. Count IX is captioned “Violation of Equal Employment Opportunity Act.” It then alleges in conclusory terms the adverse impact of defendants’ actions upon plaintiff. Count X charges defendants with sex discrimination. The claim is cast in the broadest terms. It alleges that defendant CUNY has already been “adjudicated of sex discrimination” in Melani v. Board of Higher Education of City of New York, 561 F.Supp. 769 (S.D.N.Y.1983); and concludes with the allegation that the purpose of the individual defendants “was to make an example of the plaintiff and so dominate the female employees through terroristic discipline, intimidation, and fear.” The amended complaint seeks compensatory and punitive damages, as well as equitable relief restoring her to her prior position, and enjoining defendants from retaliating against plaintiff or any of her witnesses. II Defendants contend that a number of plaintiff’s claims are subject to dismissal as a matter of" }, { "docid": "7795681", "title": "", "text": "allege any deprivation of their Fourteenth Amendment rights to equal protection and due process. Defendants are right as to the alleged equal protection violation. As Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir.1970) teaches: The Equal Protection Clause has long been limited to instances of purposeful or invidious discrimination rather than erroneous or even arbitrary administration of state powers. The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state’s action. Of course an individual alleging purposeful discrimination on the part of state officials may constitute a “class” of one for equal protection purposes. But absent allegations of deliberately having been singled out for disparate treatment from others similarly situated, a plaintiff fails to state an equal protection claim. No facts in the Complaint depict McCrimmon and Gillis as victims of such intentional or purposeful discrimination. While improper execution of the Warrant represented erroneous and arbitrary conduct by state officials, there is nothing to indicate that conduct was motivated by purposeful disparate treatment. Contrast Ossler v. Village of Norridge, 557 F.Supp. 219, 223-24 (N.D.Ill.1983). Plaintiffs’ Count I due process claim requires a bit more analysis. Leaning heavily on Parratt, 451 U.S. at 543-44, 101 S.Ct. at 1916-17, defendants’ Count I Mem. 7 argues plaintiffs have alleged no Fourteenth Amendment violation in that respect (emphasis in original): In the case at hand, plaintiffs do not allege that they were not given a hearing and an opportunity to be heard regarding the deprivations alleged in their Complaint. Nor can plaintiffs assert that they should have been given a hearing prior to the execution of the search warrant. But plaintiffs claim more than a violation of their procedural rights. They assert (see Complaint H 2) the execution of the search — in particular its extension to the garage, the seizure of property not contemplated by the Warrant and the destruction of certain property in the course of the search — violated their right to be free from unreasonable searches and seizures. That Fourth Amendment guaranty .is made" }, { "docid": "7162660", "title": "", "text": "and therefore, the former claim was subject to the one-year limitations period). Because plaintiff fails to set forth any discriminatory or retaliatory act that occurred on or after June 2, 2007, her intentional infliction of emotional distress claim must be dismissed as untimely. V. Constitutional Claims Plaintiff also alleges violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Defendant contends that it afforded plaintiff due process of law when she availed herself of UDC’s appeal procedures and appealed to President Pollard, who thereafter dismissed the adverse employment action proposed by Provost Cooke. Moreover, defendant contends that plaintiffs equal protection claim is time barred. Finally, defendant argues that plaintiffs constitutional claims should be dismissed because the Fourteenth Amendment is inapplicable to the District of Columbia. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). A. Due Process In support of her due process claim, plaintiff contends that she “avers a proper due process denial claim when, during the pre-appeal investigatory and disciplinary phases of the proceeding, UDC failed to follow and/or enforce its own applicable and exclusive standards and procedures governing disciplinary investigations and adverse actions against UDC faculty members_” (Opp’n at 4 (emphasis in original).) Thus, plaintiffs due process claim consists of her allegations that UDC placed her on administrative leave for a year while she was being investigated without providing her with a hearing until she appealed Provost Cooke’s recommendations in January 2006. To the extent that this leave was without pay, which cannot be determined from the face of the complaint, plaintiff would appear to have stated a due process claim. See Gilbert v. Homar, 520 U.S. 924, 935-36, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (finding that although a post-suspension hearing was adequate under the circumstances present ed, due process entitled university employee to a prompt hearing following his suspension without pay). B. Equal Protection Plaintiffs equal protection claim is subject to the District’s three-year residual limitation period, D.C.Code § 12-301(8). See Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C.Cir.1998) (D.C.Code § 12-301(8) provides statute of" }, { "docid": "7795680", "title": "", "text": "in connection with the execution of the Warrant. Count II charges the same defendants with constitutional violations in the arrest of, and filing of charges against, plaintiffs. Count III claims a conspiracy on the part of the same defendants to prosecute charges against plaintiffs as alleged in Count II. Count IV asserts Fourteenth Amendment violations by Johnson, Barsanti, Morrow and Office in the execution of the Warrant. Count I Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981) states the operative considerations here: Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Defendants do not deny they acted under color of state law in searching plaintiffs’ house. Rather they contend plaintiffs have failed to allege any deprivation of their Fourteenth Amendment rights to equal protection and due process. Defendants are right as to the alleged equal protection violation. As Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir.1970) teaches: The Equal Protection Clause has long been limited to instances of purposeful or invidious discrimination rather than erroneous or even arbitrary administration of state powers. The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state’s action. Of course an individual alleging purposeful discrimination on the part of state officials may constitute a “class” of one for equal protection purposes. But absent allegations of deliberately having been singled out for disparate treatment from others similarly situated, a plaintiff fails to state an equal protection claim. No facts in the Complaint depict McCrimmon and Gillis as victims of such intentional or purposeful discrimination. While improper execution of the Warrant represented erroneous and arbitrary conduct by state officials, there is nothing to indicate that conduct was motivated" }, { "docid": "445150", "title": "", "text": "did not indicate state’s affirmative duty to intervene on behalf of domestic violence victims). We conclude that the restraining order together with the defendants’ repeated notice of Balistreri’s plight, as alleged in the complaint, are sufficient to state a claim that the defendants owed Balistreri a duty to take reasonable measures to protect Bal-istreri from her estranged husband. The relationship between the defendants’ fail ure to arrest or investigate, and Balistreri’s emotional distress, presents a causation question separate from the special relationship and duty of protection issues. B. Equal Protection Several district courts have held that police failure to respond to complaints lodged by women in domestic violence cases may violate equal protection. In Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn.1984), a wife and her son alleged that the defendant police failed to provide the same protection to abused spouses and children as was afforded the victims of similar abuse outside a domestic relationship. The court held that: City officials and police officers are under an affirmative duty to preserve law and order, and to protect the personal safety of persons in the community.... This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relationship as well as to all other persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community. Failure to perform this duty would constitute a denial of equal protection of the laws. Although the plaintiffs point to no law which on its face discriminates against victims abused by someone with whom they have a domestic relationship, the plaintiffs have alleged that there is an administrative classification used to implement the law in a discriminatory fashion. It is well settled that the equal protection clause is applicable not only to discriminatory legislative action, but also to discriminatory governmental action in administration and" }, { "docid": "1275453", "title": "", "text": "the only defendant in this action is defendant Busse. Plaintiffs’ complaint purports to state a claim under 42 U.S.C. § 1983 as well as claims directly under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. They assert that Indiana’s money bail system as implemented by the defendant constitutes invidious discrimination against indigent accused persons in the plaintiff class in violation of the equal protection clause of the Fourteenth Amendment. They argue that the system as implemented establishes a classification based on wealth and constitutes a “drastic” interference with plaintiffs’ fundamental right of personal liberty and their Eighth Amendment right to be free from excessive bail. While they admit that the State has a compelling interest in securing appearance at trial, they argue that the present system does not substantially relate to this objective and does not use the least restrictive means to effectuate its objective. Given the classification which plaintiffs allege the system establishes and the rights which it infringes upon, plaintiffs contend it therefore violates their right to equal protection of the laws. They also assert that the defendant’s practices in setting bail violate their constitutional guarantee of due process of law. They argue that the procedures utilized by defendant Busse for setting bail are inadequate to protect the liberty interest at stake. At the beginning of each term, defendant Busse adopts a master bond schedule in accordance with Ind.Code § 35-l-17-5(a) (Burns Supp.1976). Plaintiffs allege that defendant Busse initially sets bail pursuant to that schedule and that the amount depends solely on the nature and severity of the offense charged. The defendant does not utilize any of the services of the “own recognizance” program operated by the Bail Services Project of the Allen County Superior Court. The Superior and Circuit Courts of Allen County, Indiana, have concurrent jurisdiction of all felony charges filed in Allen County. In essence, plaintiffs seek to compel defendant Busse to adopt certain of the practices and procedures of the Bail Services Project as well as certain of those suggested in ABA Standards, Pretrial Release (Approved Draft 1968) on the ground" }, { "docid": "2417774", "title": "", "text": "United States citizen and as a resident of Harrison[] to make use of [the] Park.” (AC ¶ 53.) The Amended Complaint does not specify the legal basis for this claim, and Judge Robinson did not address it in his September 28, 2006 order. In their motion papers, however, Defendants construe the claim as asserting that Defendants violated Plaintiffs rights guaranteed by the Due Process Clause of the Fourteenth Amendment, and Defendants argue that they are entitled to summary judgment on grounds that access to a public park is neither a fundamental right nor a cognizable liberty interest that could be protected by the Due Process Clause. (Defs.’ Mem. 13-14.) Plaintiff responds by characterizing his claim instead as asserting “a violation of fundamental rights including equal protection and the rights addressed by, inter alia, 42 U.S.C. §§ 1981 and 2000a.” (Pl.’s Mem. 20.) Although Plaintiff uses the term “fundamental rights,” he essentially acknowledges that his constitutional claims relating to Plaintiffs exclusion from the Park sound in equal protection, not in due process: “[W]hile ... the mere exclusion f[ro]m a public place might not ... represent the violation of a fundamental right, there can be no doubt that an exclusion from a public place that arises from racial discrimination is violative of such rights ....” (Id. 20-21.) See Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008) (“Because ... a municipality’s decision to limit access to its facilities does not interfere with the right to free movement, ... [plaintiffs] expulsion and temporary exclusion from [a municipal community] [c]enter did not deprive him of a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.”). Accordingly, any putative due process claim has been abandoned by Plaintiff, and is therefore dismissed. D. Fourteenth Amendment Equal Protection Claim Against Individual Defendants Plaintiff asserts a Section 1983 claim against all Defendants for “knowingly and willfully denying Plaintiff equal protection of law.” (AC ¶ 53.) As elaborated under the heading of Plaintiffs Section 1981 claim, Plaintiff alleges that “[t]he wrongful acts described [in the Amended Complaint] were purposefully discriminatory and motivated and instigated" }, { "docid": "20374963", "title": "", "text": "of the question whether the dispatchers in practice fail to respond to domestic violence calls unless a crime is in progress. Fed.R.Civ.P. 56(e) provides that in opposing a motion for summary judgment, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” The Navarros have satisfied this requirement. Ms. Pena’s testimony that dispatchers in practice treat domestic violence calls differently from non-domestic violence calls, if proved, could establish the County’s liability under Monell. We must view the Navarro’s evidence in the light most favorable to them, the nonmoving party, Jesinger, 24 F.3d at 1130; thus, the district court erred in concluding that there were no genuine issues of material fact as to whether the County had a policy or custom of not classifying domestic violence calls as an “emergency.” 2. Equal Protection Violation. The County argues that even assuming that it had a policy of affording victims of domestic violence less police protection than other crime victims, there was no evidence that discrimination against women was a motivating factor behind the administration of the alleged policy. The Equal Protection Clause of the Fourteenth Amendment states: “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Gender-based classifications must pass the “intermediate scrutiny” test, i.e., the classification “must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976); see also Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982). The Navarros contend that the County’s custom of treating domestic violence 911 calls differently from non-domestic violence calls impermissibly discriminates against abused women. The custom of according different treatment to victims of domestic violence is gender-neutral on its face. However, it is well established that discriminatory application of a facially neutral law also offends the Constitution. See Yick Wo v. Hopkins, 118 U.S. 356," }, { "docid": "7749786", "title": "", "text": "claim in violation of the equal protection clause. Moreover, the Court's discussion there, and in such later cases as Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), indicates that discriminatory purpose or intent is generally required in all equal protection cases. To succeed in his equal protection claim, then, plaintiff must prove he was the victim of purposeful discrimination, either because of his membership in a protected class, such as a racial minority, or due to an irrational or arbitrary state classification unrelated to a legitimate state objective. E.g., Stern v. Tarrant County Hospital District, 778 F.2d 1052 (5th Cir.1985), cert. denied 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). Plaintiff contends that defendants improperly discriminate against persons who are the victims of police officers’ domestic violence. The complaint alleges, for instance, that the City of Longview “condoned a pattern of practice” of affording inadequate or no protection to such victims, and that the practice is “well known” to individual officers in the police department, including the defendants. The defendants are further alleged to have acted in conformance with the practice. These allegations do more than “raise suggestions” that the policy is intentional and unrelated to any legitimate state purpose. See Johnson v. Pfeiffer, 821 F.2d 1120, 1122 (5th Cir.1987). To allege the knowing tolerance and use of such a “pattern of practice” is to allege that it is purposeful or intentional; and to state that the policy protects officers against complaints of domestic violence implies that the purposes it serves are not legitimate. Thurman, 595 F.Supp. at 1527-28. To require plaintiff to spell out that the practice is “intentional” and “irrational” would serve no useful purpose here. Defendants are sufficiently on notice as to the plaintiffs specific allegations. Dismissal is therefore unwarranted. 6. Negligent Deprivation of Civil Rights Recent Supreme Court decisions have clarified that a plaintiff may not bring a Section 1983 action for a due process deprivation based only upon the negligent acts of state officials. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), overruling" }, { "docid": "6827426", "title": "", "text": "the equal protection count against the Town was dismissed for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). Following discovery, defendant Grayson was awarded summary judgment on the individual-capacity claim because plaintiffs had failed to adduce sufficient evidence that he intended to discriminate due to their membership in any of the three classes alleged in their complaint. The district court thereafter denied plaintiffs’ postjudgment motion for reconsideration. See Fed.R.Civ.P. 59. II DISCUSSION A. The Equal Protection Claim Against Grayson The Fourteenth Amendment mandates that no State “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV. Thus, although there is no constitutional right to police protection, State executive and law enforcement officials may not “selectively deny ... protective services to certain disfavored minorities.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 197 n. 3, 109 S.Ct. 998, 1004 n. 3, 103 L.Ed.2d 249 (1989). Plaintiffs rely on City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), for their contention that the district court should not have applied the equal protection test governing race and gender classifications, which necessitated that plaintiffs show that Grayson acted with discriminatory intent. • Instead, plaintiffs argue, in cases involving less invidious but nonetheless arbitrary classifications, such as child victims of domestic sexual abuse, Cleburne simply envisions that plaintiffs prove that the defendant’s decision lacked a “rational basis,” without regard to any discriminatory intent. Plaintiffs misconstrue the Cleburne decision. There the Supreme Court expressly noted the finding made by the district court that the municipality’s principal reason for denying the requested zoning permit had been “that the residents of the [plaintiff] home would be persons who are mentally retarded,” id. at 437, 105 S.Ct. at 3253, a finding which was never challenged on appeal. Thus, it was only because the city’s discriminatory motive had been established ab initio that the Court addressed whether the city need demonstrate a “compelling” or “important” state interest — criteria theretofore reserved for race and gender discrimination — or need simply articulate a" }, { "docid": "445151", "title": "", "text": "and to protect the personal safety of persons in the community.... This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relationship as well as to all other persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community. Failure to perform this duty would constitute a denial of equal protection of the laws. Although the plaintiffs point to no law which on its face discriminates against victims abused by someone with whom they have a domestic relationship, the plaintiffs have alleged that there is an administrative classification used to implement the law in a discriminatory fashion. It is well settled that the equal protection clause is applicable not only to discriminatory legislative action, but also to discriminatory governmental action in administration and enforcement of the law. 595 F.Supp. at 1527 (citations omitted). Because the defendants put forward no important governmental interest for discriminating against women in the provision of police services, see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976) (discriminatory gender classification can only be justified by important governmental interest), the court held that plaintiffs stated a claim for denial of equal protection. Thurman, 595 F.Supp. at 1527-29. Accord Bartalone v. County of Berrien, 643 F.Supp. 574, 577 (W.D.Mich.1986); Dudosh v. City of Allentown, 665 F.Supp. 381, 392-94, reconsideration denied sub nom. Dudosh v. Warg, 668 F.Supp. 944, 951 (E.D.Pa.1987). Here, Balistreri’s claim is not well-pleaded. Although the complaint states the conclusion that Balistreri was deprived of her right to equal protection of the laws, Complaint at 7-8, there is no specific claim that the defendants’ conduct reflected discrimination based on Balistreri’s status as a female victim of domestic violence. Instead, the complaint alleges that the defendants’ conduct reflected a “failure to protect all members of the public.” Complaint" }, { "docid": "10612244", "title": "", "text": "697, 707-08, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (noting that “liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action” for purposes of incorporation). Here, the basis of Plaintiffs liberty interest claim is not clear from either the Amended Complaint or his motions papers. However, Defendants’ argument to support dismissal of this claim relies entirely on the argument they proffer in support of their motion to dismiss the First Amendment claim, which the Court has already found wanting. As a result, Plaintiffs Fourteenth Amendment liberty interest claim — amorphous as it may be— will survive the instant motion. Therefore, Defendants’ motion to dismiss Plaintiffs liberty interest claim is DENIED. IX. Fourteenth Amendment Equal Protection Claim Plaintiff has also asserted an equal protection claim on the basis of his First Amendment retaliation claim. The claim is based on the allegation that Defendants “singled out plaintiff, in part, because of his exercise of constitutional rights and intentionally violated his rights under the Fifth and Fourteenth Amendments,” without any further elaboration or supporting allegations. Am. Compl. ¶ 96. Where, as here, a plaintiff does not claim to be a member of a constitutionally protected class, he may bring an Equal Protection claim pursuant to one of two theories: (1) selective enforcement, or (2) “class of one.” In order to state a viable equal protection claim on a theory of selective enforcement or selective treatment, a plaintiff must show that: (1) “[he], compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, or to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the [plaintiff].” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir.1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.1992)). In order to adequately allege an equal protection claim on a “class of one” theory, a plaintiff must demonstrate" }, { "docid": "17520483", "title": "", "text": "alleging that the City’s policy of failing to provide adequate police protection deprived the plaintiff of a constitutional right. The amended complaint alleges that on February 5, 1973, the minor plaintiff, while a business visitor in a shop known as Peasant Garb, 223 South 17th Street, Philadelphia, Pennsylvania, was shot and wounded by one Kenneth Taylor, a/k/a Kenneth Davis, who, in the company of and in conspiracy with one Angela Frierson and one William Jones, was then robbing individuals in the shop at gunpoint. As a result of a gunshot wound inflicted by Taylor, the minor plaintiff is paralyzed from the chest down and is permanently confined to a wheelchair. Plaintiff alleges that the City is liable in damages to her on the basis of her allegation that the City failed to provide adequate police protection. She bases her claim of inadequate police protection on the allegation that the Police Department has a policy of not responding to calls for assistance unless and until a crime has actually been committed and on the alleged failure to provide adequate police protection in a high crime area. Plaintiff contends that the conduct of the defendant, City of Philadelphia, denied to her the right to equal protection of the laws in violation of § 1 of the Fourteenth Amendment, deprived her of the right to life and liberty without due process of law in violation of § 1 of the Fourteenth Amendment, deprived her of her rights, privileges, and immunities guaranteed by the Constitution and laws of the United States, deprived her of her “right” to a reasonably safe place in which to live and carry on the ordinary pursuits of life, deprived her of her “right” to lead a normal and healthy life, and deprived her of her “right” to reasonable and adequate protection from criminal assault. Construing the amended complaint in the light most favorable to the plaintiff, it basically alleges that the police protection afforded her was inadequate. This Court has been unable to find any precedent supporting plaintiff’s contention that inadequate police protection is a violation of any constitutional" }, { "docid": "22743116", "title": "", "text": "that a plaintiff identify in a complaint actual instances where others have been treated differently for purposes of equal protection. Id. at 707. The Supreme Court pointed out that “[i]ndeed, it appears that Olech herself did not ‘name names’ in her complaint, but made the more general allegation that similarly situated property owners had been asked for a different easement.” Id. The Supreme Court determined that such an allegation could “fairly be construed” as a sufficient allegation for stating an equal protection claim. Id. quoting Olech, 528 U.S. at 565, 120 S.Ct. 1073. In DeMuria, the plaintiffs made a general allegation that defendant Hawkes gave them a different standard of police protection than that typically afforded a resident of the town. The Court of Appeals found this general allegation to be sufficient and we agree with that determination. Although DeMuria does relax the “class of one” pleading requirements by negating the need for specificity, an allegation of an equal protection violation still must contain a claim that a plaintiff has been treated differently from others who are similarly situated. The District Court here dismissed the complaint because it determined that Phillips had not alleged that the defendants treated the decedent differently from others similarly situated. Phillips’ complaint does raise very general accusations. For example, Count One alleges claims against Allegheny County and the Allegheny County 911 Services. In Paragraph 45 of Count One, Phillips alleges that “the actions of the defendant were intentional and/or constituted willful disregard, gross recklessness and deliberate indifference for Phillips’ personal safety, well-being and right to life in derogation of the Due Process and Equal Protection clauses of the Fourteenth Amendment.” Count Two of the complaint alleges claims against the individual defendants Nussbaum, Tush, Craig, Deutsch, Ging, Zurcher and Cestra. In Paragraph 54, the complaint alleges that “the actions of the defendants were intentional and/or constituted willful disregard, gross recklessness and deliberate indifference for Phillips’ personal safety, well-being and right to life in derogation of the Due Process Clause and Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.” Clearly, both of these" }, { "docid": "5688940", "title": "", "text": "in invoking the fourteenth amendment as a basis for his Bivens claim. Although the second circuit has stated that an \"invocation of the Fourteenth Amendment’s Due Process Clause as the source of [a] claim for relief [may come] within Bivens’ sweeping approbation of constitutionally-based causes of action,” Brault v. Town of Milton, 527 F.2d 730, 734 (2d Cir.1975), such a claim is untenable where the allegation is against federal agents acting under color of federal law. . The plaintiff does not identify or seek to certify a class of plaintiffs, nor does he specify how such \"others” may have been injured through the alleged acts. . He lists as among those laws various first amendment rights, fifth amendment due process, fourteenth amendment equal protection, and \"all privileges and immunities\" under state law, including freedom from abuse of process. As noted in note 6 above, there is no basis for the plaintiff’s fourteenth amendment claims because the acts complained of in the plaintiff's suit arise from federal, not state, law. . 42 U.S.C. Section 1985(3) in pertinent part applies where persons conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... . The portion of 42 U.S.C. Section 1985(2) relied upon by the plaintiff applies where persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Terri tory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; ... See Amended Complaint, at para. 52. . 42 U.S.C. Section 1985(3) in pertinent part further applies where persons conspire ... for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the" }, { "docid": "1709913", "title": "", "text": "the Equal Protection Clause as contemplated by the Supreme Court in DeShaney’s footnote three. In McKee v. City of Rockwall, Texas, 877 F.2d 409 (5th Cir.1989), we affirmed a district court’s grant of summary judgment asserting that the plaintiff faded to produce sufficient summary judgment evidence to show that the defendants adopted law enforcement policies, customs, and practices that treated victims of domestic assault differently from victims of other crimes. McKee, 877 F.2d at 416. As such, the court left open the questions of whether law enforcement policies, practices, and customs that treat victims of domestic assault differently from victims of other crimes constitute intentional discrimination against women under Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and whether such policies discriminate against protected minorities within the meaning of DeShaney’s footnote three. McKee, 877 F.2d at 416. Approximately eleven years after McKee, we are again called upon to address whether a domestic abuse victim’s complaint against a law enforcement agency and its officials for failure to effectuate an arrest, and for their adoption of policies, practices, and customs that discriminate against victims of domestic assault constitute intentional discrimination against women, and thus is cognizable under the Equal Protection Clause. Specifically, Shipp claims that the defendants through their policies, practices, and customs afforded less protection to victims of domestic assault than other assault victims. Furthermore, Shipp claims that these policies, customs, and practices disproportionately impact women because an overwhelming majority of the victims of domestic assaults are women. The issues raised in Shipp’s complaint invoke the unresolved questions of McKee. Before addressing McKee’s, unresolved questions, we recognize that governmental policies, which create neutral classifications that have a disproportionate adverse impact upon a protected class, are unconstitutional under the Equal Protection Clause only if the disproportionate impact can be traced to a discriminatory purpose. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Thus, the Equal Protection clause of the Fourteenth Amendment prohibits a state from engaging in intentionally discriminatory conduct that has an adverse disparate impact on" }, { "docid": "17520487", "title": "", "text": "our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. Id. at 34-35, 93 S.Ct. at 1297. The Constitution does not explicitly or implicitly provide a right to adequate police protection. Plaintiff cites no authority supporting her claim that it does. The fact that the United States Constitution does not provide a right to adequate police protection does not mean that whenever a state or municipality undertakes to provide such a service it may do so in a manner which violates a constitu tional right. The Fourteenth Amendment to the Constitution provides: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This means that the City, as an arm of the State, must not violate the guarantees of due process and equal protection in providing any service. This Court has construed the amended complaint in the light most favorable to the plaintiff, and, though the plaintiff has been given the opportunity to amend her complaint to set forth with particularity the factual basis for her alleged constitutional violation, she does not allege any constitutional due process violation anchored in the Constitution, nor does she allege any constitutional equal protection violation such as a failure to provide her with police protection because of her race, her color, or her creed. The plaintiff’s allegation that the Police Department pursued a policy of not responding to calls for assistance unless and until a crime was actually committed or her allegation that the City failed to provide adequate police protection in a high crime area might well support a claim that such a policy is unwise, but such allegations do not rise to the level of a constitutional violation. Plaintiff’s amended complaint also contains a pendent state law tort claim based on the City’s alleged failure to provide adequate police protection. Federal courts have the" }, { "docid": "23325790", "title": "", "text": "extremely disturbing. We believe, however, that the cases establishing and defining the constitutional right of access to the courts, the Supreme Court’s holding in De-Shaney, and our decision in Philadelphia Police and Fire Association, coupled with the evidence that plaintiff has adduced, cannot be interpreted so as to uphold the district court’s decision denying either defendant’s motion for summary judgment on plaintiff’s civil court access claim. We therefore will reverse the district court’s denial of summary judgment to Grabowski and Schwartz on this claim. C. Count Three: The Equal Protection Claim In count three, plaintiff claims that Gra-bowski and Schwartz, by failing to comply with New Jersey’s Domestic Violence Act, breached their constitutional duty to enforce the state’s laws equally and fairly, in violation of Evans’ fourteenth amendment right to equal protection. She further alleges that defendants’ failure to provide Evans with adequate protection resulted from a discriminatory animus toward victims of domestic violence, who primarily are women. In developing her equal protection claim, plaintiff relies, as did the district court, on our decision in Hynson v. City of Chester Legal Department, 864 F.2d 1026 (3d Cir.1988). In Hynson, we took note of the “growing trend of reliance on 42 U.S.C. § 1983 to bring an action against the police alleging that the policies used in handling domestic abuse cases violate the equal protection of women victims.” Id. at 1027. We then announced a new precedent setting forth the requirements for stating an equal protection claim grounded in the unequal treatment of victims of domestic violence. We held that [i]n order to survive summary judgment, a plaintiff must proffer sufficient evidence that would allow a reasonable jury to infer that it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence, that discrimination against women was a motivating factor, and that the plaintiff was injured by the policy or custom. Id. at 1031. After setting forth the “prima facie” requirements for stating a constitutional claim of gender-based discrimination in police policies toward victims of domestic violence, we" }, { "docid": "1709914", "title": "", "text": "for their adoption of policies, practices, and customs that discriminate against victims of domestic assault constitute intentional discrimination against women, and thus is cognizable under the Equal Protection Clause. Specifically, Shipp claims that the defendants through their policies, practices, and customs afforded less protection to victims of domestic assault than other assault victims. Furthermore, Shipp claims that these policies, customs, and practices disproportionately impact women because an overwhelming majority of the victims of domestic assaults are women. The issues raised in Shipp’s complaint invoke the unresolved questions of McKee. Before addressing McKee’s, unresolved questions, we recognize that governmental policies, which create neutral classifications that have a disproportionate adverse impact upon a protected class, are unconstitutional under the Equal Protection Clause only if the disproportionate impact can be traced to a discriminatory purpose. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Thus, the Equal Protection clause of the Fourteenth Amendment prohibits a state from engaging in intentionally discriminatory conduct that has an adverse disparate impact on women unless the state can show an “exceedingly persuasive justification for that action.” See United States v. Virginia, 518 U.S. 515, 530, 116 S.Ct. 2264, 2274, 135 L.Ed.2d 735 (1996). State policies that perpetuate antiquated and outdated gender stereotypes that are derogatory and condescending toward women do not form the basis for proper discriminatory purpose. See Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). In addressing the questions McKee left open, we observe that courts from other circuits have addressed similar Equal Protection challenges based on law enforcement policies, practices, and customs that treat victims of domestic assault differently from other crime victims. In Watson v. City of Kansas City, 857 F.2d 690 (10th Cir.1988), a victim of domestic assault brought a § 1983 action against a city, the city’s police department, and several police officers acting in their official capacities for adopting policies, practices, and customs that provided less protection to domestic assault victims than other assault victims. In addressing the victim’s claim, the Watson court" } ]

[ { "docid": "20316225", "title": "", "text": "avoid the appearance of impropriety [footnote omitted]. 469 F.2d at 1385-86. Indeed, since its determination may only be set aside for an abuse of discretion, Kroungold v. Triester, 521 F.2d 763, 765 (3d Cir. 1975); Richardson v. Hamilton International Corp., supra, 469 F.2d at 1386; Greene v. The Singer Company, 461 F.2d 242, 243 (3d Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972), the district court’s responsibility is particularly awesome in a question of this sort. In support of its motion, Pullman cited Richardson v. Hamilton International Corp., supra; Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975); T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953); and Slater v. Rimar, Inc., 338 A.2d 584 (Pa.1975). Although I do not question the result reached in any of these cases, since each involved a situation where a defendant was exposed to actual or potential prejudice by the action of its former attorney, Pullman’s reliance upon them is misplaced. Indeed, neither the briefs nor my own research disclosed a single case precisely on point, i. e., where a named defendant sought to disqualify plaintiff’s counsel on the ground that he also represented an entirely separate defendant. Mr. Stevens at no time was counsel for either Pullman or any other defendant, and the third-party defendant which he does represent, Lehigh, stated for the record that it has no objection whatever to his continued advocacy of plaintiffs’ causes. Lehigh frankly conceded that from the outset it has cooperated with plaintiffs and aided and assisted them in the preparation of their claims against Pullman. My review of the law on disqualifications of counsel reveals that courts invoke that remedy in two situations. First, disqualification is proper where it appears that the subject matter of a pending suit in which an attorney represents an interest adverse to a prior employer is such that during the course of the former representation he might have acquired substantially related material. American Roller Company v. Budinger, 513 F.2d 982, 984 (3d Cir. 1975); Richardson v. Hamilton International Corp., supra, 469 F.2d" } ]

[ { "docid": "22581440", "title": "", "text": "to NPD for resisting the order of disqualification, and since the order to pay is invalid if Schwartz & Freeman should not have been disqualified, the appeal from that order requires us to consider the validity of the disqualification order in any event. For rather obvious reasons a lawyer is prohibited from using confidential information that he has obtained from a client against that client on behalf of another one. But this prohibition has not seemed enough by itself to make clients feel secure about reposing confidences in lawyers, so a further prohibition has evolved: a lawyer may not represent an adversary of his former client if the subject matter of the two representations is “substantially related,” which means: if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. It is irrelevant whether he actually obtained such information and used it against his former client, or whether — if the lawyer is a firm rather than an individual practitioner — different people in the firm handled the two matters and scrupulously avoided discussing them. See, e.g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir.1973); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976); Trone v. Smith, 621 F.2d 994, 998 (9th Cir.1980); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020, 1028 (5th Cir.1981), and in this circuit Cannon v. U.S. Acoustics Corp., 532 F.2d 1118, 1119 (7th Cir.1976) (per curiam), aff’g 398 F.Supp. 209, 223-24 (N.D.Ill.1975); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976); Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 223-25 (7th Cir.1978). There is an exception for the ease where a member or associate of a law firm (or government legal department) changes jobs, and later he or his new firm is retained by an adversary of a client of his former firm. In such a case, even if there is a substantial relationship between the two matters, the lawyer can avoid disqualification by showing that effective measures were taken to" }, { "docid": "22341710", "title": "", "text": "was required to avoid even the appearance of professional impropriety, citing as authority our decision in General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974). Appellant’s counsel strongly dispute these findings. They say that they should not be disqualified unless the relationship between the controversies is substantial, and they contend there is nothing substantial in the relationship between an upstate New York conspiracy to deprive local theater operators of access to films and an attempted corporate take-over in New York City. The “substantial relationship” test is indeed the one that we have customarily applied in determining whether a lawyer may accept employment against a former client. International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1291 (2d Cir. 1975); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975); Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). However, in this case, suit is not against a former client, but an existing one. One firm in which attorney Fleischmann is a partner is suing an actively represented client of another firm in which attorney Fleischmann is a partner. The propriety of this conduct must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each' of his clients. A lawyer’s duty to his client is that of a fiduciary or trustee. Hafter v. Farkas, 498 F.2d 587, 589 (2d Cir. 1974); Spector v. Mermelstein, 361 F.Supp. 30, 38 (S.D.N.Y.1972), modified on other grnds., 485 F.2d 474 (2d Cir. 1973); Wise, Legal Ethics 256 (2d ed.). When Cinerama retained Mr. Fleischmann as its attorney in the Western District litigation, it was entitled to feel that at least until that litigation was at an end, it had his undivided loyalty as its advocate and champion, Grievance Committee v. Rottner, 152 Conn. 59, 65, 203 A.2d 82 (1964), and could rely upon his “undivided allegiance and faithful, devoted service.” Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948). Because “no man can serve" }, { "docid": "22341711", "title": "", "text": "an actively represented client of another firm in which attorney Fleischmann is a partner. The propriety of this conduct must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each' of his clients. A lawyer’s duty to his client is that of a fiduciary or trustee. Hafter v. Farkas, 498 F.2d 587, 589 (2d Cir. 1974); Spector v. Mermelstein, 361 F.Supp. 30, 38 (S.D.N.Y.1972), modified on other grnds., 485 F.2d 474 (2d Cir. 1973); Wise, Legal Ethics 256 (2d ed.). When Cinerama retained Mr. Fleischmann as its attorney in the Western District litigation, it was entitled to feel that at least until that litigation was at an end, it had his undivided loyalty as its advocate and champion, Grievance Committee v. Rottner, 152 Conn. 59, 65, 203 A.2d 82 (1964), and could rely upon his “undivided allegiance and faithful, devoted service.” Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948). Because “no man can serve two masters”, Matthew 6:24; In re W. T. Byrns, Inc., 260 F.Supp. 442, 445 (E.D.Va.1966); Woods v. City Nat’l Bank and Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 85 L.Ed. 820 (1941), it had the right to expect also that he would “accept no retainer to do anything that might be adverse to his client’s interests.” Loew v. Gillespie, 90 Misc. 616, 619, 153 N.Y.S. 830, 832 (1915), aff’d, 173 App.Div. 889, 157 N.Y.S. 1133 (1st Dep’t 1916). Needless to say, when Mr. Fleischmann and his New York City partners undertook to represent Cinema 5, Ltd., they owed it the same fiduciary duty of undivided loyalty and allegiance. Ethical Considerations 5-1 and 5-14 of the American Bar Association’s Code of Professional Responsibility provide that the professional judgment of a lawyer must be exercised solely for the benefit of his client, free of compromising influences and loyalties, and this precludes his acceptance of employment that will adversely affect his judgment or dilute his loyalty. The Code has been adopted by the New York State" }, { "docid": "22272945", "title": "", "text": "S.Ct. 911, 66 L.Ed.2d 835 (1981); Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). That risk is encountered when an attorney represents one client in a suit against another client, in violation of Canon 5, e. g., Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), or might benefit a client in a lawsuit by using confidential information about an adverse party obtained through prior representation of that party, in violation of Canon 4, e. g., Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). Mindful of our standards, the parties have joined issue on whether Logan is a client of Phillips Nizer by virtue of the firm’s representation of the Association. Glueck contends that members of an incorporated trade association are not clients of the association’s lawyer and emphasizes that the retainer agreement between Phillips Nizer and the Association explicitly negates the firm’s representation of the Association’s members. Logan responds that the members of an incorporated association are the clients of the association’s lawyer and argues that Phillips Nizer’s retainer agreement only assures it the right to charge separate fees for legal work done specifically for an Association member. We share Judge Conner’s view that the issue is not whether Phillips Nizer’s relationship to Logan is in all respects that of attorney and client, but whether there exist sufficient aspects of an attorney-client relationship “for purposes of triggering inquiry into the potential conflict involved in Phillips Nizer’s role as plaintiff’s counsel in this action.” 512 F.Supp. at 227. See Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1318-20 (7th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). Having concluded that such inquiry should be made, Judge Conner then applied the strict standards that ordinarily prohibit representation of adverse interests, Cinema 5, Ltd. v. Cinerama, Inc., supra, and determined that, in view of the relationship between the subject of Glueck’s lawsuit and the nature of the services rendered by Phillips Nizer to the Association and its members, Phillips Nizer had not demonstrated “ ‘that" }, { "docid": "22804882", "title": "", "text": "reserves in the Mt. Taylor properties. Finally, even though Bigbee represented UNC, a co-defendant in Westinghouse, the position between the two parties was adverse because UNC was attempting to exculpate itself by inculpating Gulf. The district court accepted Gulf’s argument of actual adverseness but nonetheless declined to disqualify the Bigbee firm. The court concluded that Bigbee “certainly did gain knowledge of Gulf’s uranium properties during its work” but reasoned that nevertheless there was not a substantial relationship between the matters encompassed by the prior representation and those of the Westinghouse litigation, because the prior representation “focused on real estate transactions connected with Gulf’s untapped and undeveloped uranium reserves,” whereas the “heart of the complaint” details a price-fixing conspiracy, the evidence of which “will focus on meetings and communications among the alleged co-conspirators, as well as evidence on uranium prices, terms and conditions of sale, and market availability.” Thus, the court concluded that there was no substantial relationship between the matters. Westinghouse Electric Corp. v. Rio Algom Ltd., 448 F.Supp. 1284, 1312 (N.D.Ill.1978). II The district court set out and attempted to apply what is clearly settled as the relevant test in disqualification matters: where an attorney represents a party in a matter in which the adverse party is that attorney’s former client, the attorney will be disqualified if the subject matter of the two representations are “substantially related.” The substantial relationship test had its federal court genesis in T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953). The Second Circuit continues to apply the test. Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132 (2d Cir. 1976); Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976). That circuit has also developed the “peripheral representation” exception. This circuit has also adopted the substantial relationship test. Cannon v. U. S. Acoustics Corp., 398 F.Supp. 209, 223-34 (N.D.Ill.1975), adopted and affirmed, 532 F.2d 1118, 1119 (7th Cir. 1976); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir." }, { "docid": "22804883", "title": "", "text": "court set out and attempted to apply what is clearly settled as the relevant test in disqualification matters: where an attorney represents a party in a matter in which the adverse party is that attorney’s former client, the attorney will be disqualified if the subject matter of the two representations are “substantially related.” The substantial relationship test had its federal court genesis in T. C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953). The Second Circuit continues to apply the test. Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132 (2d Cir. 1976); Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976). That circuit has also developed the “peripheral representation” exception. This circuit has also adopted the substantial relationship test. Cannon v. U. S. Acoustics Corp., 398 F.Supp. 209, 223-34 (N.D.Ill.1975), adopted and affirmed, 532 F.2d 1118, 1119 (7th Cir. 1976); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1322 (7th Cir. 1978). The substantial relationship rule embodies the substance of Canons 4 and 9 of the A.B.A. Code of Professional Responsibility. Canon 4 provides that “a lawyer should preserve the confidences and secrets of a client,” and Canon 9 provides that “a lawyer should avoid even the appearance of professional impropriety.” As a result it is clear that the determination of whether there is a substantial relationship turns on the possibility, or appearance thereof, that confidential information might have been given to the attorney in relation to the subsequent matter in which disqualification is sought. The rule thus does not necessarily involve any inquiry into the imponderables involved in the degree of relationship between the two matters but instead in-volves a realistic appraisal of the possibility that confidences had been disclosed in the one matter which will be harmful to the client in the other. The effect of the Canons is necessarily to restrict the inquiry to the possibility of disclosure; it is" }, { "docid": "22398932", "title": "", "text": "is appropriate. Our reading of the cases in this circuit suggests that we have utilized the power of trial judges to disqualify counsel where necessary to preserve the integrity of the adversary process in actions before them. In other words, with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., supra; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). In such cases, we note Chief Judge Kaufman’s oft-quoted admonition that, When dealing with ethical principles, we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after a painstaking analysis of the facts and precise application of precedent. Fund of Funds, Ltd., supra, 567 F.2d at 227, quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955). But in other kinds of cases, we have shown considerable reluctance to disqualify attorneys despite misgivings about the attorney’s conduct. See, e. g., W. T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir. 1976); Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268 (2d Cir. 1975). This reluctance probably derives from the fact that disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical" }, { "docid": "327701", "title": "", "text": "PMC and class counsel, have given them “such a direct conflict of interest as to create a clear impropriety in violation of controlling standards of professional conduct.” For the reasons below, we have concluded that the motion should be denied. II. DISCUSSION As a matter of professional responsibility, an attorney owes a duty of loyalty to his client. This duty encompasses an obligation to defer to the client’s wishes on major litigation decisions, not to divulge confidential communications from the client, and not to accept representation of a person whose interests are opposed to those of the client. E.g., A.B.A. Code of Professional Responsibility EC 7-1, 4-1, and 5-2. These obligations do not necessarily end when the attorney-client relationship ends. E.g., Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir.1976); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir.1973). Thus, we have ordered disqualification of a party’s attorney where, as a result of his prior representation of another client, “the attorney is at least potentially in a position to use privileged information concerning the other side ... thus giving his present client an unfair advantage.” Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); see, e.g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384; In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 161 (3d Cir.1984) (“Corn Derivatives”) (“In litigation, an attorney may not abandon his client and take an adverse position in the same case. This is not merely a matter of revealing or using the client’s confidences and secrets, but of a duty of continuing loyalty to the client.”), cert. denied, — U.S. —, 105 S.Ct. 2702, 86 L.Ed.2d 718 (1985). Applying these traditional principles in non-class-action litigation, we have held that, in order to support a motion for disqualification, “ ‘the former client [need] show no more than that the matters embraced within the pending suit wherein his former attorney appears ... are substantially related to the matters or cause of action where the" }, { "docid": "23429123", "title": "", "text": "if he accepts or continues the employment. He should resolve all doubts against the propriety of this representation. Ethical Consideration 5-15. It has been repeatedly held that an attorney may not represent a client in litigation against a former client if the subject matter of the litigation is “substantially related” to work he or she did for the former client. See e. g. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). If the representation is against an existing client, not just a former one, the balance shifts even more significantly toward disqualification. See Cinema 5, Ltd. v. Cinerama, 528 F.2d 1384, 1386 (2nd Cir. 1976). Continental claims that Winston & Strawn in representing Laub, represents a party whose interests may be adverse to pre-existing clients, Interstate and Ward. The court agrees. However this fact, in and of itself, does not necessitate disqualification. See Baglini v. Pullman Inc., 412 F.Supp. 1060, 1065, 1066 (E.D.Penn.1976); Cannon v. U.S. Accoustics Corp., 398 F.Supp. 209, 219-220 (N.D.Ill.S.D.1975). A lawyer’s duty to his client is that of a fiduciary or trustee. See e. g. Hafter v. Farkas, 498 F.2d 587, 589 (2nd Cir. 1974). He or she must give undivided loyalty to each client. See e. g. Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948). A client can expect that an attorney will “accept no retainer to do anything that might be adverse to his client’s interests.” See Cinema 5, Ltd. v. Cinerama, Inc., et al., supra, 528 F.2d at 1386 [emphasis added]. In most situations the simple appearance of a conflict would be sufficient to cause this court to disqualify an attorney. See Canon 9 Code of Professional Responsibility. In this case however there is a crucial additional fact; the only party, who can be conceivably harmed by the potential conflict is Laub, which desires to keep its present counsel. The" }, { "docid": "22398931", "title": "", "text": "representation is necessary to facilitate assertion of a specific point of view in court. Thus, while the male defendants have a right to obtain legal advice and representation, we do not believe that on these facts the First Amendment protects the right of a particular attorney to represent them in court. We thus conclude that the First Amendment does not constrain consideration of the propriety of Mr. Sandner’s representation and the disqualification order, to which we now turn. Ill We begin the discussion by noting that, curiously, the power of the federal courts to disqualify attorneys in litigation pending before them has long been assumed without discussion, see, e. g., General Contract Purchase Corp. v. Armour, 125 F.2d 147, 149 (5th Cir. 1942); United States v. Bishop, 90 F.2d 65, 66 (6th Cir. 1937); Brown v. Miller, 52 App.D.C. 330, 286 F. 994, 997 (1923); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 271 n. 15 (S.D.N.Y.1953), and attention has focused on identifying the circumstances in which exercise of the power is appropriate. Our reading of the cases in this circuit suggests that we have utilized the power of trial judges to disqualify counsel where necessary to preserve the integrity of the adversary process in actions before them. In other words, with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., supra; Emle Industries," }, { "docid": "23429122", "title": "", "text": "us to hold that any of these findings are clearly erroneous. On the contrary, they appear to be fully supported by the record. Judge Manos then entered the following conclusions of law: Continental claims that Winston & Strawn’s duty to protect the interest of Interstate and Ward conflict with their duty to represent Laub in the present suit. Continental argues that this suit would have joined Interstate, Ward and Continental as defendants if attorneys other than Winston & Strawn had been retained to represent Laub. Continental contends that Winston & Strawn’s continued representation of Laub in this suit violates Canon 5 of the Code of Professional Responsibility and therefore Winston & Strawn should be disqualified. Canon Five and pertinent Ethical Considerations promulgated thereunder read in part: A lawyer should exercise independent professional judgment on behalf of a client. Canon Five. ' If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of this representation. Ethical Consideration 5-15. It has been repeatedly held that an attorney may not represent a client in litigation against a former client if the subject matter of the litigation is “substantially related” to work he or she did for the former client. See e. g. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). If the representation is against an existing client, not just a former one, the balance shifts even more significantly toward disqualification. See Cinema 5, Ltd. v. Cinerama, 528 F.2d 1384, 1386 (2nd Cir. 1976). Continental claims that Winston & Strawn in representing Laub, represents a party whose interests may be adverse to pre-existing clients, Interstate and Ward. The court agrees. However this fact, in and of itself, does" }, { "docid": "11469321", "title": "", "text": "and Lockwood is presently retained by Hendrickson in connection with the payment of taxes on foreign patents— unrelated to railcar moving vehicles — and to represent Hendrickson in trademark opposition proceedings related to the registration of a trademark on the Hendrickson logo. Hendrickson and defendant White became related companies in the middle of 1976 as indicated by Hendrickson having purchased 20% of White’s outstanding stock and by the composition of White’s Board of Directors which include the President and Vice-President of Hendrickson. Defendant White is seeking to disqualify Lockwood from representing either Whiting or Hendrickson because, in its view, such dual representation presents an improper conflict of interest and because it fears its interests will be prejudiced by the continued dual representation. Without deciding whether White, which neither is nor ever has been Lockwood’s client, has standing to herein complain, I note that the court, once apprised of an alleged breach of professional responsibility has a duty to determine whether there is any substance to the accusations. See Empire Linotype School v. United States, 143 F.Supp. 627, 631 (S.D.N.Y.1956). There is a test called the “substantial related” test that should guide an attorney, and if necessary the court, in ascertaining whether or not a conflict arises out of an attorney’s accepting employment in a suit against a former client. See Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968). But the propriety of accepting employment in an action against an existing client must be measured in light of “the duty of undivided loyalty which an attorney owes to each of his clients.” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976). This case is unique and does not fit neatly into either of these classical factual settings in that neither of Lockwood’s clients, even after having been fully informed of the dual representation, seeks to have it disqualified. One of them, Hendrickson, is not a party to the present lawsuit. Moreover, both attorney-client relationships concern mutually exclusive subject matters. Canon 5 of the Code of Professional Responsibility is particularly appropriate under these" }, { "docid": "16127533", "title": "", "text": "subject matter of a former representation and that of a subsequent adverse representation . . . .” T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.1953) [“T. C. Theatre”]; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975). The Court of Appeals for the Second Circuit recently held that a different test is applicable where an attorney takes part in a suit against an existing client. In this situation the propriety of the conduct “. . . must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients,” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) [“Cinema 5”]. Milgrim Thomajan argues that the relationship of Arthur Andersen to Morgan Lewis should be considered to be that of a former client, because Morgan Lewis, having been told by Andersen to withdraw from all representation of Andersen shortly before this attorney disqualification motion was brought, no longer represents Andersen. Andersen contends that the existing client standard should be applied, because it was an existing client at the time Morgan Lewis “accepted employment” from the liquidator and at the time of the investigation and filing of the Andersen complaint. Andersen was an existing client of Morgan Lewis at the time of the investigation and filing of the instant complaint when the alleged conflict of interest arose. Accordingly, the Court finds that Andersen should be considered an existing client for purposes of this motion and that the standard by which to evaluate Morgan Lewis’ conduct is that set forth in Cinema 5: “Under the Code, the lawyer who would sue his own client, asserting in justification the lack of ‘substantial relationship’ between the litigation and the work he has undertaken to perform for that client, is leaning on a slender reed indeed. Putting it as mildly as we can, we think it would be questionable conduct for an attorney to participate in" }, { "docid": "22212938", "title": "", "text": "with a landmark district court opinion in T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). Confronted with a case where a lawyer was seeking to represent a client whose interests were adverse to those of a former client, Judge Weinfeld instructed that: the former, client [must] show no more than that the matters embraced within the pending suit wherein his former attorney appears . . . are substantially related to the matters or cause of action where the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed . . .. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule . . . be maintained. T. C. Theatre Corp. v. Warner Bros. Pictures, supra, at 268-9. The so-called ‘substantially related’ test in T. C. Theatre has been given form over the years, both in the exclusive context of private practice, see, e. g., Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973); Hull v. Celanese Corp., supra; NCK v. Bregman Ltd., 542 F.2d 128 (2d Cir. 1976), and in cases involving government attorneys who have returned to the private sector. See, e. g. United States v. Standard Oil Co., 136 F.Supp. 345 (S.D.N.Y.1955); General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974). See generally, Note, The Second Circuit and Attorney Disqualification — Silver Chrysler Steers in a New Direction, 44 Fordham L.Rev. 130 (1975). In triangular relationships, such as the one before us, the “substantial relationship” test requires that we ask ourselves whether Meister, through his relationship with Morgan Lewis, was in a position to receive relevant confidences regarding Andersen. Our decisions in Hull and NCK mandate an affirmative answer to that question. Hull, whose facts have been described, required the disqualification of a previously neutral law firm merely on a showing that the tainted lawyer client might have transmitted some confidences to the firm. And NCK v. Bregman, Ltd., supra, presents an analogically compelling triangle" }, { "docid": "16127532", "title": "", "text": "Morgan Lewis represented Arthur Andersen in the Philadelphia area for at least fifteen years. This representation was not terminated until May, 1975, after the filing of the complaint in this action and shortly before this attorney disqualification motion was brought. In determining whether the relationship between Morgan Lewis and Andersen would require Morgan Lewis’ disqualification from any involvement in the litigation against Ander sen, the Court first must determine whether Andersen is a former or an existing client of Morgan Lewis’ for the purposes of this motion. This is necessary because the Second Circuit Court of Appeals has enunciated different standards for participation by an attorney in a suit against a client, depending on whether the client is a former or an existing one. Most of the attorney disqualification cases decided in the last 20 years have evolved out of situations in which an attorney has accepted employment against a former client. These cases have uniformly held that an attorney is precluded from accepting such employment “where any substantial relationship can be shown between the subject matter of a former representation and that of a subsequent adverse representation . . . .” T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.1953) [“T. C. Theatre”]; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975). The Court of Appeals for the Second Circuit recently held that a different test is applicable where an attorney takes part in a suit against an existing client. In this situation the propriety of the conduct “. . . must be measured not so much against the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to each of his clients,” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) [“Cinema 5”]. Milgrim Thomajan argues that the relationship of Arthur Andersen to Morgan Lewis should be considered to be that of a former client, because Morgan Lewis, having been told by Andersen to withdraw from all representation" }, { "docid": "17653935", "title": "", "text": "Inc., 653 F.2d 746 (2d Cir.1981). The possible effects on the quality of an attorney’s services on behalf of a client being sued by the attorney include diminution in the vigor of the representation of the client in the other matter and a deleterious effect on the attorney-client relationship. International Business Machines Corp. v. Levin, 579 F.2d 271, 280 (3d Cir.1978). Disqualification must be ordered when an attorney’s multiple representation gives the appearance of representing multiple interests. Cinema 5, Ltd., 528 F.2d at 1387. The duty of undivided loyalty applies in this case despite the fact that BFE & M withdrew its representation of Harte prior to the filing of this motion to disqualify. See Jelco, Inc., 646 F.2d at 1345 n. 4. The Jelco court noted that “[i]f this were not the case, the challenged attorney could always convert a present client into a ‘former client’ by choosing when to cease to represent the disfavored client.” Id. By withdrawing from its representation of Stanley Harte, BFE & M breached the duty of loyalty owed to Harte. “A lawyer’s duty to his client is that of a fiduciary or trustee.” Cinema 5, Ltd., 528 F.2d at 1386. A client who retains an attorney to represent him expects the attorney’s “undivided loyalty” as his “advocate and champion.” Id. The client also has a right to expect that his attorney would “accept no retainer to do anything that might be adverse to his client’s interests.” Id., quoting, Loew v. Gillespie, 90 Misc. 616, 619, 153 N.Y.S. 830, 832 (1915), aff'd, 173 App.Div. 889, 157 N.Y.S. 1133 (1st Dep’t 1916). In this case, BFE & M withdrew from its representation of Harte in favor of another client. The court is convinced that BFE & M acted in good faith and that the conflict arose inadvertantly. However, “with rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship.” Cinema 5, Ltd., 528 F.2d at 1386 quoting Matter of Kelly, 23 N.Y.2d" }, { "docid": "11469322", "title": "", "text": "F.Supp. 627, 631 (S.D.N.Y.1956). There is a test called the “substantial related” test that should guide an attorney, and if necessary the court, in ascertaining whether or not a conflict arises out of an attorney’s accepting employment in a suit against a former client. See Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968). But the propriety of accepting employment in an action against an existing client must be measured in light of “the duty of undivided loyalty which an attorney owes to each of his clients.” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976). This case is unique and does not fit neatly into either of these classical factual settings in that neither of Lockwood’s clients, even after having been fully informed of the dual representation, seeks to have it disqualified. One of them, Hendrickson, is not a party to the present lawsuit. Moreover, both attorney-client relationships concern mutually exclusive subject matters. Canon 5 of the Code of Professional Responsibility is particularly appropriate under these circumstances. This Canon directs a lawyer to exercise independent professional judgment on behalf of a client. Thereunder, EC 5-14 through EC 5-20 generally relate to multiple client representation. Especially pertinent here is EC 5-16 which provides, in part, that “before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent.” When an attorney is so retained, EC 5-19 requires that “he should explain any circumstances that might cause a client to question his undivided loyalty.” See also Disciplinary Rule 5-105(C). The Lockwood law firm maintaining the highest ethical standards, followed these principles and fully informed both Whiting and Hendrickson of its representation of the other. Neither has ever complained nor sought to have Lockwood remove itself from any such representation, including this pending litigation. As readily conceded by White, Lockwood is innocent of any wrongdoing, and plaintiff would be unduly prejudiced if now, four years after the inception of this lawsuit, it were compelled to" }, { "docid": "47639", "title": "", "text": "two-fold inquiry. Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977). The first question is whether there was in fact an attorney-client relationship between the party seeking disqualification (Cossette) and the attorney in dispute (the Maguire firm). As outlined above, this was evident. The fact, emphasized by the majority, that Bogner had withdrawn from the Maguire firm before this litigation was instituted, is entirely immaterial to the issue of the conflict that existed when Bogner was in the firm. The Maguire firm’s disqualification stems from the relationship that existed when Builder was representing Country Style Donuts and Bogner was representing Cossette and while both Builder and Bogner were in the same law firm. Once the attorney-client relationship showing is made, the only other question is whether the matters involved in the present litigation are substantially related to the matters of the former relationship. This is also evident. As we stated in Wilson P. Abraham Const, v. Armco Steel Corp., supra : The law in this Circuit is fairly straightforward. This Court has recently reaffirmed with regards to attorney disqualification that a former client seeking to disqualify an attorney who appears on behalf of his adversary, need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him. In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976); T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). This rule rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation. The Court may not even inquire as to whether such disclosures were in fact made or whether the attorney in fact is likely to use the damaging disclosures to the detriment of his former client. Emie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2nd Cir. 1973). The inquiry is limited solely to whether the matters of the present suit are substantially related to matters of the prior representation, and this" }, { "docid": "23429124", "title": "", "text": "not necessitate disqualification. See Baglini v. Pullman Inc., 412 F.Supp. 1060, 1065, 1066 (E.D.Penn.1976); Cannon v. U.S. Accoustics Corp., 398 F.Supp. 209, 219-220 (N.D.Ill.S.D.1975). A lawyer’s duty to his client is that of a fiduciary or trustee. See e. g. Hafter v. Farkas, 498 F.2d 587, 589 (2nd Cir. 1974). He or she must give undivided loyalty to each client. See e. g. Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948). A client can expect that an attorney will “accept no retainer to do anything that might be adverse to his client’s interests.” See Cinema 5, Ltd. v. Cinerama, Inc., et al., supra, 528 F.2d at 1386 [emphasis added]. In most situations the simple appearance of a conflict would be sufficient to cause this court to disqualify an attorney. See Canon 9 Code of Professional Responsibility. In this case however there is a crucial additional fact; the only party, who can be conceivably harmed by the potential conflict is Laub, which desires to keep its present counsel. The court has found that Melamed and Balantzow were fully informed about any possible conflict of interest. Yet undisputably Melamed and Balantzow believe that the continued representation of Laub by Winston & Strawn is in the best interest of the trust. That there has been full disclosure weighs heavily against disqualification. See Whiting Corp. v. White Machinery Corp., 567 F.2d 713, 715 (7th Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1386. Further Laub exercised an important public right in retaining Winston & Strawn; the right to the counsel of their choice, see e. g. Woods v. Covington City Bank, 537 F.2d 804, 810 (5th Cir. 1976); Moritz v. Medical Protective Co. etc., 428 F.Supp. 865, 874 (W.D.Wisconsin 1977); Baglini v. Pullman Inc., supra, 412 F.Supp. at 1066. The knowing and intelligent exercise of the right to choose counsel, after full disclosure, will not be overturned by this court unless there is a convincing showing by the moving party of a real and substantial harm to the acquiescing party’s interests. Baglini v." }, { "docid": "8810889", "title": "", "text": "To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 269 (S.D.N.Y.1953). Consequently, to avoid this dilemma, courts have been virtually unanimous in requiring only that the moving party in a disqualification motion show (1) that there was an attorney-client relationship between the movant and counsel representing the opposing party and (2) that the subject matter of the current suit is “substantially related” to the matters or cause of action of the suspect attorney’s prior representation. E. g. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 607-08 (8th Cir. 1977), cert. denied, 436 U. S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132-33 (2d Cir. 1976); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). Once these two facts have been shown, [t]he Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 268. Accord Schloetter v. Railoc of Indiana, Inc., supra at 710. It is important to note that the reason the courts have created this presumption of counsel possessing confidential information is to prevent the possible use of those confidences or secrets against the former client." } ]

[ { "docid": "18520626", "title": "", "text": "Petition; (3) this court is an inappropriate forum in which to settle disputes between a debtor and its sole creditor; (4) the Involuntary Petition was filed in bad faith; and (5) pursuant to 11 U.S.C.A. § 305 (West 1993), dismissal is in the best interest of all parties. The original petitioning creditor, James S. Bush, filed a response to Dudley W. Taylor’s dismissal motion on December 15,1995, asserting, inter alia, that Dudley W. Taylor lacked standing under the Bankruptcy Code and Rules to contest the Involuntary Petition filed against Taylor & Associates, L.P. In a Memorandum filed January 26, 1996, the court, in denying Dudley W. Taylor’s Motion to Dismiss Involuntary Petition, made a number of findings, including that Taylor & Associates, L.P. is a limited partnership under the laws of the State of Tennessee and therefore qualifies as a debtor under the Bankruptcy Code, and that Dudley W. Taylor, who is alleged by James S. Bush to be a general partner of the debtor but who denies the allegation, has standing pursuant to Fed.R.Bankr.P. 1011(a) to contest the Involuntary Petition. See In re Taylor & Assocs., L.P., 191 B.R. 374 (Bankr.E.D.Tenn.1996). Dudley W. Taylor filed an Answer to Involuntary Petition on January 30,1996, denying that the petitioners are creditors of Taylor & Associates, L.P. and asserting, with two exceptions, defenses to the Involuntary Petition identical to those set forth in his December 1,1995 Motion to Dismiss Involuntary Petition. At a scheduling conference held February 8, 1996, the court ruled that under the law of the case doctrine it would not reconsider those matters raised in Dudley W. Taylor’s answer that had previously been resolved in disposing of the Motion to Dismiss Involuntary Petition; that pursuant to Fed.R.Bankr.P. 1003(b) Dudley W. Taylor was to file a list of all creditors of Taylor & Associates, L.P. on or before February 23, 1996; and that until the court determined whether the Involuntary Petition would be sustained or dismissed, it would not address a claim asserted by Dudley W. Taylor in his answer that he was entitled to fees, costs, and damages pursuant" } ]

[ { "docid": "2443295", "title": "", "text": "B.R. 374 (Bankr.E.D.Tenn.1996), rem’d, Taylor v. Bush (In re Taylor & Assocs., L.P.), 249 B.R. 431 (E.D.Tenn.1997). The court thereafter tried the contested Involuntary Petition on March 1, 1996, on the limited issues of whether the petitioners were entitled to maintain the Involuntary Petition pursuant to 11 U.S.C.A. § 303(b) (West 1993 & Supp. 1995) and whether, pursuant to 11 U.S.C.A. § 303(h)(1) (West 1993), Taylor & Associates, L.P. was “generally not paying such debtor’s debts as such debts bec[a]me due unless such debts are the subject of a bona fide dispute[.]” Subsequent to the conclusion of the March 1, 1996 trial, the court sustained the Involuntary Petition and entered an Order for Relief under Chapter 7 on March 8, 1996, supported by a Memorandum on Contested Involuntary Petition. See In re Taylor & Assocs., L.P., 193 B.R. 465 (Bankr.E.D.Tenn.1996). Dudley W. Taylor thereafter perfected an appeal to the district court. That court, on March 28, 1997, pursuant to an Order and supporting Memorandum, vacated the Order for Relief and remanded the matter to this court for an evidentiary hearing on Taylor & Associates, L.P.’s status under Tennessee law as a general or limited partnership. Specifically, the district court directs in its Order that the matter is remanded “for proceedings consistent with the matters stated in [its] Memorandum.” Subsequent to receipt of the district court’s March 28, 1997 remand Order and Memorandum, and after other procedural appellate hurdles had been resolved, the court held a scheduling conference on September 4, 1997. Emanating from the scheduling conference was a Pretrial Order entered on September 17, 1997, which was subsequently supplanted by an Amended Pretrial Order entered on October 15, 1997. The Amended Pretrial Order identified the issue the court is called upon to resolve as follows: 3. The sole issue for trial is whether Taylor & Associates, L.P., was, pursuant to 11 U.S.C.A. § 109(b) (West 1993), a “person” eligible to be a debtor under Chapter 7 at the time the Involuntary Petition was filed against it. Specifically, the issue is whether a factual basis exists to allow this court to" }, { "docid": "13924976", "title": "", "text": "against Taylor & Associates, L.P. Dudley Taylor does not assert that he is the debtor, a nonpetitioning general partner of Taylor & Associates, L.P., or a creditor. Instead, Dudley Taylor asserts that he is only the attorney that drafted the limited partnership documents for Taylor & Associates, L.P. However, Dudley Taylor argues that Mr. Bush, the original petitioning creditor, has alleged in his December 15,1995 response to the motion to dismiss that he, Dudley Taylor, is a general partner. Therefore, notwithstanding that Dudley Taylor denies the existence of a partnership and denies that he is a partner, Dudley Taylor argues that pursuant to Fed.R.Bankr.P. 1011 he has standing to oppose the Involuntary Petition. Dudley Taylor also asserts that he has standing to contest the Involuntary Petition based on In re G—2 Realty Trust, 6 B.R. 549 (Bankr.D.Mass.1980). The court finds that Dudley Taylor’s reliance on G-2 Realty Trust is misguided. In that case, the Massachusetts bankruptcy court was required to determine whether an involuntary petition filed under Chapter 11 should be dismissed upon motion by a secured creditor. The secured creditor alleged that the filing of the involuntary petition resulted from collusion between the debtor and petitioning creditors; therefore, the involuntary petition was filed in bad faith and should be dismissed. In a footnote to the opinion, the court rejected the debtor’s and petitioning creditors’ argument that under § 303(j) the secured creditor lacked standing to file a motion to dismiss the involuntary petition based on the following analysis: Section 303(j) does not in any way attempt to limit which parties may properly bring a motion to dismiss an involuntary petition. Rather, that section simply provides that where an involuntary is sought to be dismissed by a petitioning creditor, by consent between the petitioning creditors and the debtor, or through a lack of prosecution by the petitioning creditors, dismissal may only take place after all creditors have received notice and an appropriate hearing has been held. The obvious import of this section, as reflected in the legislative history, is to prevent collusive settlements by the debtor and the petitioning creditors" }, { "docid": "18520636", "title": "", "text": "accordingly finds that Joseph C. Taylor was the general partner of Taylor & Associates, L.P. At the March 1,1996 hearing, the petitioning creditors offered statements made by Joseph C. Taylor against the opposing party, as required by Rule 801(d)(2)(D) and as was done in Wiedyk. However, in this ease, as opposed to Wiedyk, the declarant was an agent of the opposing party, i.e., Joseph C. Taylor was the agent of Taylor & Associates, L.P., the opposing party that has answered and contested the Involuntary Petition through Dudley W. Taylor, an alleged general partner. See Tenn.Code Ann. § 61-1-108(a) (1989) (“Every partner is an agent of the partnership for the purpose of its business .... ”). Furthermore, “declarations of one partner made during the existence of the partnership and in relation to its affairs are admissible against the other partners even if the declarant is not a party to the action.” United States v. Saks, 964 F.2d 1514, 1524 (5th Cir.1992) (discussing the general rule at common law, as set forth in Filesi v. United States, 352 F.2d 339, 342 (4th Cir.1965), which Congress evidently did not depart from when it enacted Rule 801). Based on the foregoing rationale and the reasons stated at the March 1, 1996 hearing, the statements by Joseph C. Taylor offered as evidence against Dudley W. Taylor and Taylor & Associates, L.P. constitute admissible non-hearsay pursuant to Rule 801(d)(2)(D). Ill STATUS OF PETITIONING CREDITORS UNDER 11 U.S.C.A. § 303(b) (WEST 1993 & SUPP.1995) Dudley W. Taylor contends that none of the petitioners are creditors of Taylor & Associates, L.P., who hold claims “not contingent as to liability or the subject of a bona fide dispute” as required by Bankruptcy Code § 303(b). Rather, Dudley W. Taylor argues that the petitioners are creditors of Joseph C. Taylor, individually, or of entities operated by Joseph C. Taylor other than Taylor & Associates, L.P. However, there is no evidence in the record before the court to support a finding that Joseph C. Taylor was engaged in or operated any business other than the limited partnership business of Taylor &" }, { "docid": "2443362", "title": "", "text": "originally presented to the court upon the filing of the Involuntary Petition beyond that of Taylor & Associates, L.P.’s eligibility to be a debtor as a general or limited partnership, to also include Taylor & Associates, L.P.’s eligibility to be a debtor as a “corporation,” as defined at 11 U.S.C.A. § 101(9)(A)(iv)-(v) (West 1993). The court granted the Motion to Amend Pretrial Order over Dudley W. Taylor's objection. See In re Taylor & Assocs., L.P., Case No. 95-33024, slip op. (Bankr.E.D.Tenn. Oct. 15, 1997). . None of the petitioners testified at the December 1 and 2, 1997 hearing. Testimony of those petitioners who testified at the March 1, 1996 hearing on the contested Involuntary Petition is, of course, part of the record. That testimony is, for the most part, not relevant to the eligibility issue presently before the court. . This court customarily makes its findings of fact in narrative form. However, in this matter, numbered paragraphs better facilitate the isolation of relevant portions of the record. . The district court identified \"at least four different contexts in which someone referred to [Taylor and Associates, L.P.]” Taylor & Assocs., L.P., 249 B.R. at 443-44. For the sake of clarity, the findings of fact made by this court are organized within the four contexts identified by the district court, all of which were discussed during the course of the December 1-2, 1997 trial. . All references throughout this Memorandum to the Andrew Deposition are to exhibit 75, the Deposition of David Andrew taken on November 14, 1997. . All references to a transcript (Tr.) are references to the December 1-2, 1997 transcript unless otherwise designated. . The record is unclear as to whether the word \"and” within the name of these entities is spelled out in its entirety or abbreviated by the use of an ampersand. . The record contains references to Valley Medical as both Valley Medical Systems, Inc. and Valley Medical Systems, L.P. (Exs.55-57, 59.) . The record is unclear as to whether the word \"and” within the name of the corporate entity is spelled out in its entirety" }, { "docid": "13924975", "title": "", "text": "involuntary petition. With regard to Bankruptcy Code § 303(d), Collier provides: Non-petitioning creditors are not given the right to answer a petition.... A creditor should not be permitted to oppose the entry of an order for relief; invariably, the motive of such a creditor is to protect a preference or to retain some other undue advantage at the expense of the other creditors, contrary to a fundamental purpose of the bankruptcy laws: an equitable distribution among creditors. 2 Collier on Bankruptcy ¶ 303.20[5] (15th ed. 1995) (footnote omitted) (unattributed quotation of H.R.Rep. No. 1409, 75th Cong., 1st Sess. 17 (1937)). With respect to Rule 1011, Collier provides: Rule 1011 contains no provision authorizing creditors to contest an involuntary petition_ This recognizes that bankruptcy is a collective proceeding intended to benefit creditors. As such, it would not be in the interest of creditors generally to permit objections by particular creditors who might stand to lose more in a collective proceeding. 8 id. ¶ 1011.04. Only Dudley Taylor and John Miller have contested the Involuntary Petition filed against Taylor & Associates, L.P. Dudley Taylor does not assert that he is the debtor, a nonpetitioning general partner of Taylor & Associates, L.P., or a creditor. Instead, Dudley Taylor asserts that he is only the attorney that drafted the limited partnership documents for Taylor & Associates, L.P. However, Dudley Taylor argues that Mr. Bush, the original petitioning creditor, has alleged in his December 15,1995 response to the motion to dismiss that he, Dudley Taylor, is a general partner. Therefore, notwithstanding that Dudley Taylor denies the existence of a partnership and denies that he is a partner, Dudley Taylor argues that pursuant to Fed.R.Bankr.P. 1011 he has standing to oppose the Involuntary Petition. Dudley Taylor also asserts that he has standing to contest the Involuntary Petition based on In re G—2 Realty Trust, 6 B.R. 549 (Bankr.D.Mass.1980). The court finds that Dudley Taylor’s reliance on G-2 Realty Trust is misguided. In that case, the Massachusetts bankruptcy court was required to determine whether an involuntary petition filed under Chapter 11 should be dismissed upon motion by" }, { "docid": "2443296", "title": "", "text": "court for an evidentiary hearing on Taylor & Associates, L.P.’s status under Tennessee law as a general or limited partnership. Specifically, the district court directs in its Order that the matter is remanded “for proceedings consistent with the matters stated in [its] Memorandum.” Subsequent to receipt of the district court’s March 28, 1997 remand Order and Memorandum, and after other procedural appellate hurdles had been resolved, the court held a scheduling conference on September 4, 1997. Emanating from the scheduling conference was a Pretrial Order entered on September 17, 1997, which was subsequently supplanted by an Amended Pretrial Order entered on October 15, 1997. The Amended Pretrial Order identified the issue the court is called upon to resolve as follows: 3. The sole issue for trial is whether Taylor & Associates, L.P., was, pursuant to 11 U.S.C.A. § 109(b) (West 1993), a “person” eligible to be a debtor under Chapter 7 at the time the Involuntary Petition was filed against it. Specifically, the issue is whether a factual basis exists to allow this court to determine that Taylor & Associates, L.P., was eligible to be a debtor under Chapter 7 as either a limited or general partnership under Tennessee law, or whether Taylor & Associates, L.P., was a “corporation” as defined at 11 U.S.C.A. § 101(9) (West 1993), i.e., an unincorporated company or association or business trust under Tennessee law. Furthermore, the Amended Pretrial Order established certain scheduling guidelines regarding the prosecution and defense of the “corporation” issue by the petitioners and Dudley W. Taylor. Speeif-ically, the Amended Pretrial Order directs in material part: 4.... To the extent the petitioning creditors rely on the existing record to support their theory that Taylor & Associates, L.P., was a “corporation,” they shall file and serve on Dudley W. Taylor a written designation of relevant portions of the transcript, including documents, in support of their argument by October 31, 1997. Dudley W. Taylor shall file and serve on the petitioning creditors his designation of relevant portions of the existing record to support his argument on the “corporation” issue by November 14, 1997. The" }, { "docid": "2443294", "title": "", "text": "MEMORANDUM RICHARD S. STAIR, Jr., Chief Judge. This involuntary case was commenced under Chapter 7 with the filing of an Involuntary Petition against Taylor & Associates, L.P. on November 13, 1995, by James S. Bush. The Involuntary Petition was subsequently joined by twelve additional creditors. On December 1, 1995, Dudley W. Taylor filed a Motion to Dismiss Involuntary Petition alleging, inter alia, that Taylor & Associates, L.P. is not an entity that qualifies as a debtor under 11 U.S.C.A. § 109(b) (West 1993 & Supp. 1995). The sole eligibility issue raised by Dudley W. Taylor in his dismissal motion was Taylor & Associates, L.P.’s status as a general or limited partnership under Tennessee law. In a Memorandum filed January 26,1996, the court, in denying Dudley W. Taylor’s Motion to Dismiss Involuntary Petition made a number of findings, in-eluding the finding that Taylor & Associates, L.P. was a limited partnership under Tennessee law and was therefore eligible to be a debtor under Chapter 7 pursuant to § 109(b). See In re Taylor & Assocs., L.P., 191 B.R. 374 (Bankr.E.D.Tenn.1996), rem’d, Taylor v. Bush (In re Taylor & Assocs., L.P.), 249 B.R. 431 (E.D.Tenn.1997). The court thereafter tried the contested Involuntary Petition on March 1, 1996, on the limited issues of whether the petitioners were entitled to maintain the Involuntary Petition pursuant to 11 U.S.C.A. § 303(b) (West 1993 & Supp. 1995) and whether, pursuant to 11 U.S.C.A. § 303(h)(1) (West 1993), Taylor & Associates, L.P. was “generally not paying such debtor’s debts as such debts bec[a]me due unless such debts are the subject of a bona fide dispute[.]” Subsequent to the conclusion of the March 1, 1996 trial, the court sustained the Involuntary Petition and entered an Order for Relief under Chapter 7 on March 8, 1996, supported by a Memorandum on Contested Involuntary Petition. See In re Taylor & Assocs., L.P., 193 B.R. 465 (Bankr.E.D.Tenn.1996). Dudley W. Taylor thereafter perfected an appeal to the district court. That court, on March 28, 1997, pursuant to an Order and supporting Memorandum, vacated the Order for Relief and remanded the matter to this" }, { "docid": "13924980", "title": "", "text": "J. Taylor, D. Taylor offers to share, along with law partner Fleishman, J. Taylor’s losses from a “bond deal.” This is further evidence that a partnership existed. Finally, the existence of a partnership is shown by individuals holding themselves out as partners. The intent to enter into a partnership can be shown by one’s claim that he is a partner. J. Taylor held himself out as a partner \"with D. Taylor and Taylor & Associates to Bush, to Andrew, and in the Certificate of Limited Partnership. Additionally, Andrew was told by both D. Taylor and J. Taylor that Taylor & Associates, L.P. was a general partnership and that J. Taylor was one of several partners. Further, in the memorandum attached to Andrew’s affidavit, D. Taylor asserts that he and Fleishman, if anyone, had control over Taylor & Associates, L.P., and, hence, D. Taylor held himself out as a partner. J. Bush’s Resp. to Mot. to Dismiss Involuntary Pet. at 9-10, 13-14 (citations omitted). Dudley Taylor may arguably be a recipient of an alleged preferential transfer. Based solely on the purpose of the Bankruptcy Code and Rules, that is to prohibit a creditor from protecting a preferential transfer by opposing an involuntary petition, Dudley Taylor should not be permitted to seek dismissal of the Involuntary Petition. However, Rule 1011 allows “a person who is alleged to be a general partner but denies the allegation ... [to] contest the petition.” This provision was included because “of the possible consequences to [the alleged general partner] of an order for relief against the entity alleged to include him as a member.” Fed. R.BankrJP. 1011 advisory committee notes; see 8 Collier on Bankruptcy ¶ 1011.04 (15th ed. 1995). James Bush did not include in the Involuntary Petition the names of any general or limited partners of Taylor & Associates, L.P. Pursuant to Fed.R.Bankr.P. 7004(b)(3), service on the debtor was accomplished by serving the Tennessee Secretary of State pursuant to Fed.R.Bankr.P. 1010 and Tenn. R.Civ.P. 4.04(12). Because Joseph Taylor, the one individual who could reveal the necessary facts regarding the debtor, died shortly before the filing" }, { "docid": "2433558", "title": "", "text": "MEMORANDUM COLLIER, District Judge. The appellant, Dudley W. Taylor (“D.Taylor”), appeals from an Order of Relief (Record 54) entered on March 8, 1996 by the United States Bankruptcy Court for the Eastern District of Tennessee (Stair, C.J.). D. Taylor asserts error by the bankruptcy court in its (1) denial of appellant’s Motion to Dismiss the Involuntary Petition, (2) denial to appellant of a trial on the issue of whether Taylor and Associates, L.P. (“TALP”) was a limited partnership under Tennessee law, (3) denial of appellant’s motion to strike the affidavit of William T. Hendon, (4) failure to dismiss the Involuntary Petition for lack of subject matter jurisdiction because the alleged debtor, TALP, is not a person eligible for relief under the Bankruptcy Code, (5) admission of certain statements of Joseph C. Taylor over appellant’s objection, (6) holding that certain creditors hold claims against TALP that are not contingent nor subject to a bona fide dispute, (7) holding that TALP is generally not paying its debts as they become due, and (8) holding that the Involuntary Petition was not filed in bad faith. Following filing of the appeal, appellant filed an Emergency Motion for Stay Pending Appeal (Court File No. 5). Appellee James S. Bush (“Bush”) filed a Response (Court File No. 8). D. Taylor filed a Reply (Court File No. 11). Jurisdiction to hear appeals from bankruptcy court is conferred by 28 U.S.C. § 158. In determining appeals from bankruptcy court, this Court sits as an appellate court. It reviews the bankruptcy court’s findings of fact under a clearly erroneous standard, but conducts a de novo review of the bankruptcy court’s conclusions of law. Fed.R.Bankr.P. 8013; In re Isaacman, 26 F.3d 629, 630 (6th Cir.1994); Harbour Lights Marina v. Wandstrat, 153 B.R. 781 (Bankr.S.D.Ohio 1993). However, the Court may overturn matters within the discretion of the bankruptcy court only for an abuse of discretion. Fed.R.Bankr.P. 8003; American Imaging Services, Inc. v. Eagle-Picher Industries, Inc. (In re Eagle-Picher Industries, Inc.), 963 F.2d 855, 858 (6th Cir.1992); accord, Investors Credit Corp. v. Batie, 995 F.2d 85, 88 (6th Cir.1993). For the following" }, { "docid": "18520637", "title": "", "text": "352 F.2d 339, 342 (4th Cir.1965), which Congress evidently did not depart from when it enacted Rule 801). Based on the foregoing rationale and the reasons stated at the March 1, 1996 hearing, the statements by Joseph C. Taylor offered as evidence against Dudley W. Taylor and Taylor & Associates, L.P. constitute admissible non-hearsay pursuant to Rule 801(d)(2)(D). Ill STATUS OF PETITIONING CREDITORS UNDER 11 U.S.C.A. § 303(b) (WEST 1993 & SUPP.1995) Dudley W. Taylor contends that none of the petitioners are creditors of Taylor & Associates, L.P., who hold claims “not contingent as to liability or the subject of a bona fide dispute” as required by Bankruptcy Code § 303(b). Rather, Dudley W. Taylor argues that the petitioners are creditors of Joseph C. Taylor, individually, or of entities operated by Joseph C. Taylor other than Taylor & Associates, L.P. However, there is no evidence in the record before the court to support a finding that Joseph C. Taylor was engaged in or operated any business other than the limited partnership business of Taylor & Associates, L.P. While certain exhibits introduced into evidence contain references to “Joseph C. Taylor & Associates, Inc.,” “Joe Taylor & Assoc., L.P.,” “Joe Taylor & Assoc.,” “Taylor & Assoc.,” and the like, these references alone are not sufficient to permit the court to determine the existence of any corporate or proprietorship entity operated by Joseph C. Taylor. The court therefore concludes, for purposes of resolving only the issues presently before it, that all such references are to Taylor & Associates, L.P., the debtor. A Analysis of § 303(b) Bankruptcy Code § 303(b) provides in material part: (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title— (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute, or an indenture trustee representing such a holder, if such claims aggregate at least $10,000 more than the" }, { "docid": "2443361", "title": "", "text": "under Fed. R. Bankr. P. 1011 because James S. Bush, the original petitioner, alleged in a response to the motion to dismiss that Dudley W. Taylor was a general partner of Taylor & Associates, L.P. See In re Taylor & Assocs., L.P., 191 B.R. 374, 379-80 (Bankr.E.D.Tenn.1996). Dudley W. Taylor denies the existence of Taylor & Associates, L.P. as a partnership and denies that he was a partner. . All statutory citations referred to in this Memorandum are those in effect at the time of the filing of the Involuntary Petition. . Pursuant to § 109(b) only a \"person” may be a debtor under Chapter 7. A person is defined under the Bankruptcy Code to include an \"individual, partnership, and corporation.” See 11 U.S.C.A. § 101(41) (West Supp. 1995). See also 11 U.S.C.A. § 101(13) (West 1993). . The Amended Pretrial Order was necessitated by a Motion to Amend Pretrial Order filed by certain of the petitioners on September 26, 1997. By this motion, the petitioners sought to expand the scope of the eligibility issue originally presented to the court upon the filing of the Involuntary Petition beyond that of Taylor & Associates, L.P.’s eligibility to be a debtor as a general or limited partnership, to also include Taylor & Associates, L.P.’s eligibility to be a debtor as a “corporation,” as defined at 11 U.S.C.A. § 101(9)(A)(iv)-(v) (West 1993). The court granted the Motion to Amend Pretrial Order over Dudley W. Taylor's objection. See In re Taylor & Assocs., L.P., Case No. 95-33024, slip op. (Bankr.E.D.Tenn. Oct. 15, 1997). . None of the petitioners testified at the December 1 and 2, 1997 hearing. Testimony of those petitioners who testified at the March 1, 1996 hearing on the contested Involuntary Petition is, of course, part of the record. That testimony is, for the most part, not relevant to the eligibility issue presently before the court. . This court customarily makes its findings of fact in narrative form. However, in this matter, numbered paragraphs better facilitate the isolation of relevant portions of the record. . The district court identified \"at least four" }, { "docid": "18520625", "title": "", "text": "peti tion on December 15, 1995; Robert E. Hall, M.D., Trustee for Robert E. Hall, M.D., P.A. Money Purchase Pension Plan, asserting a claim in excess of $10,000.00, Robert E. Hall, M.D., Trustee for Robert E. Hall, M.D., P.A. Defined Benefit Plan, asserting a claim in excess of $10,000.00, Robert E. Hall, M.D., P.A., asserting a claim in excess of $10,-000.00, Robert E. Hall, individually, asserting a claim in excess of $10,000.00, and W.T. Mathes, asserting a claim in excess of $70,-000.00, each joined the petition on December 20, 1995; and Johnson and Galyon, Inc., asserting a claim of $1,000,000.00, joined the petition on February 23,1996. On December 1, 1995, Dudley W. Taylor filed a Motion to Dismiss Involuntary Petition alleging that the Involuntary Petition should be dismissed because (1) Taylor & Associates, L.P. is not an entity that qualifies as a debtor under 11 U.S.C.A. § 109(b) (West 1993 & Supp.1995); (2) the petitioning creditor, James S. Bush, is not eligible under 11 U.S.C.A. § 303(b) (West 1993 & Supp.1995) to file the Involuntary Petition; (3) this court is an inappropriate forum in which to settle disputes between a debtor and its sole creditor; (4) the Involuntary Petition was filed in bad faith; and (5) pursuant to 11 U.S.C.A. § 305 (West 1993), dismissal is in the best interest of all parties. The original petitioning creditor, James S. Bush, filed a response to Dudley W. Taylor’s dismissal motion on December 15,1995, asserting, inter alia, that Dudley W. Taylor lacked standing under the Bankruptcy Code and Rules to contest the Involuntary Petition filed against Taylor & Associates, L.P. In a Memorandum filed January 26, 1996, the court, in denying Dudley W. Taylor’s Motion to Dismiss Involuntary Petition, made a number of findings, including that Taylor & Associates, L.P. is a limited partnership under the laws of the State of Tennessee and therefore qualifies as a debtor under the Bankruptcy Code, and that Dudley W. Taylor, who is alleged by James S. Bush to be a general partner of the debtor but who denies the allegation, has standing pursuant to Fed.R.Bankr.P." }, { "docid": "18520635", "title": "", "text": "as a matter of authority. Id. at 606 (second alteration in original) (citations omitted). In the matter presently before this court, the issue of Joseph C. Taylor’s status with respect to Taylor & Associates, L.P. is material to understanding the court’s resolution of Dudley W. Taylor’s hearsay objection. In its Memorandum filed January 26, 1996, disposing of Dudley W. Taylor’s Motion to Dismiss Involuntary Petition, the court found that Taylor & Associates, L.P. is a limited partnership under the laws of the State of Tennessee. See Taylor & Assocs., L.P., 191 B.R. at 384-90. This finding was grounded in part on a Certificate of Limited Partnership for Taylor & Associates, L.P., filed with the Tennessee Secretary of State on May 6, 1994. Id. at 387. The Taylor & Associates, L.P. Certificate of Limited Partnership, introduced as Exhibit 1 at a November 15, 1995 hearing regarding the appointment of an interim trustee, unambiguously states that “[t]he name and address of the sole general partner [of Taylor & Associates, L.P.] is ... Joseph C. Taylor.” The court accordingly finds that Joseph C. Taylor was the general partner of Taylor & Associates, L.P. At the March 1,1996 hearing, the petitioning creditors offered statements made by Joseph C. Taylor against the opposing party, as required by Rule 801(d)(2)(D) and as was done in Wiedyk. However, in this ease, as opposed to Wiedyk, the declarant was an agent of the opposing party, i.e., Joseph C. Taylor was the agent of Taylor & Associates, L.P., the opposing party that has answered and contested the Involuntary Petition through Dudley W. Taylor, an alleged general partner. See Tenn.Code Ann. § 61-1-108(a) (1989) (“Every partner is an agent of the partnership for the purpose of its business .... ”). Furthermore, “declarations of one partner made during the existence of the partnership and in relation to its affairs are admissible against the other partners even if the declarant is not a party to the action.” United States v. Saks, 964 F.2d 1514, 1524 (5th Cir.1992) (discussing the general rule at common law, as set forth in Filesi v. United States," }, { "docid": "2443298", "title": "", "text": "court will not consider any portion of the existing record in its resolution of the “corporation” issue not specifically designated by the parties. 5. The petitioning creditors shall, within ten (10) days, serve Dudley W. Taylor with a designation of the witnesses they anticipate calling at the trial in support of their theory that Taylor & Associates, L.P., was a “corporation” and with written notice regarding all discovery they desire to take relating to the “corporation” issue. The petitioners failed to comply with the scheduling requirements of paragraphs 4 and 5 of the Amended Pretrial Order and the court, upon consideration of a Motion to Dismiss Involuntary Petition or, in the Alternative, to Exclude Evidence at Trial and for Sanctions filed by Dudley W. Taylor on November 10, 1997, directed, inter alia, that the petitioners were precluded from introducing evidence at the trial on the “corporation” issue that was already included within the existing record and from calling witnesses at the trial in sup port of their “corporation” theory. See Taylor & Associates, L.P., Case No. 95-33024, slip op. at 10 (Bankr.E.D.Tenn. Nov. 14,1997). On December 1 and 2, 1997, the court conducted an evidentiary hearing on Taylor & Associates, L.P.’s eligibility to be a debtor under Chapter 7 as a general or limited partnership. The record before the court consists of the testimony of witnesses and 107 exhibits, forty-eight of which were admitted into evidence at the March 1, 1996 hearing on the contested Involuntary Petition. I The District Court’s March 28, 1997 Remand Order As a threshold matter, the court will address the district court’s March 28, 1997 Order and Memorandum as they affect the petitioners’ burden of proof on Taylor & Associates, L.P.’s eligibility to be a debtor under Chapter 7. “ ‘Under the “law of the case” doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.’ ” Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 n. 5 (6th Cir.1996) (quoting Richardson v. United States, 841 F.2d 993, 996 (9th Cir.1988))." }, { "docid": "13924978", "title": "", "text": "by insuring that all creditors are aware that the involuntary may be dismissed. Moreover, under § 1112(b) of the Code, the Bank “as a party in interest” is clearly granted the standing to seek a dismissal of any proceeding brought under Chapter 11. G-2 Realty Trust, 6 B.R. at 551 n. 5 (citations omitted). The court’s statement regarding § 303(j) is contrary to the general rule that a nonpetitioning creditor has no standing to oppose an involuntary petition. See, e.g., Manson Billard, Inc., 82 B.R. at 771-72; 2 Collier on Bankruptcy ¶ 303.20[5] (15th ed. 1995); 8 id. ¶ 1011.04. Furthermore, this court’s historical review of the Bankruptcy Code and Rules provides a more accurate analysis of the creditor standing issue in this Chapter 7 involuntary case. As previously mentioned, Dudley Taylor asserts that he has standing to oppose the Involuntary Petition under Fed.R.Bankr.P. 1011 because Mr. Bush has alleged that he is a general partner of Taylor & Associates, L.P. Mr. Bush included the following statements in his response to the motion to dismiss: [T]wo possible exceptions to the general rule [that nonpetitioning creditors are not permitted to oppose an involuntary petition] may apply. First, unlike the Code, the Rules do permit a person alleged to be a general partner, but denying the allegation, to contest the petition. See Bankruptcy Rule 1011(a). Although the Petition does not allege that D. Taylor is a general partner, in response to D. Taylor’s Motion, Bush has been forced to set forth facts indicating that D. Taylor is a general partner in Taylor & Associates, L.P. This may be sufficient under the Rules for D. Taylor to have standing to contest the Petition. See Bankruptcy Rule 1011(a). ... [With regard to the issue of whether Taylor & Associates, L.P. is a partnership eligible for bankruptcy,] the profits and losses from Taylor & Associates, L.P. were being shared by the partners.... This evidence of the sharing of the profits of the business is “prima facie evidence” that a partnership exists. The sharing of losses was also contemplated. In a letter dated October 31,1995, to" }, { "docid": "2443359", "title": "", "text": "67 (stating that “each person is free to participate as he or she sees fit, based on the size of the investment”). Assuming the existence of a partnership or partnerships, the petitioners have failed to establish exactly which individuals were partners with D. Taylor and Fleishman at any particular point in time. They simply made the general allegation that a partnership existed without defining the parameters of the partnership that they refer to. This is problematic in that there quite possibly could have been a number of partnerships given the “free-wheeling investment arrangement” established by D. Taylor and other interested parties. See Ex. 67. Moreover, as the district court noted, different partnerships may have existed for different purposes. D. Taylor’s October 19, 1995 letter to L. Seaton’s attorney suggests that an investment club existed for investment purposes with J. Taylor. However, D. Taylor’s July 24, 1995 Memorandum to Andrew suggests that an investment club existed for the purpose of acquiring assets and making temporary or bridge loans to clients. Accordingly, the petitioners have failed to establish the existence of a defined, implied partnership within the context of the various investment activities of D. Taylor and Fleish-man. V In conclusion, the petitioners have failed to establish the existence of a limited or general partnership operating under the name of Taylor & Associates, L.P. Accordingly, Taylor & Associates, L.P. is not eligible to be a debtor in bankruptcy and the Involuntary Petition against Taylor & Associates, L.P. will be dismissed. An appropriate order wilLbe entered. . The entity against whom the Involuntary Petition was filed, Taylor & Associates, L.P., has not always been referred to as \"Taylor & Associates, L.P.\" throughout the course of the contested involuntary petition. For the sake of consistency, the court will refer to the alleged debtor throughout this Memorandum as Taylor & Associates, L.P. unless a particular documented reference to the alleged debt- or is discussed, in which case the name of the alleged debtor will be quoted exactly as the name appears in the document. . Dudley W. Taylor’s standing to oppose the Involuntary Petition arises" }, { "docid": "2433603", "title": "", "text": "a limited partnership or a general partnership. Accordingly, appellant’s Motion for Emergency Stay Pending Appeal will be GRANTED, the Order of Relief is VACATED, and this matter REMANDED for proceedings consistent with this opinion. An Order will enter. . The Order of Relief (Record 54) is accompanied by a very thorough Memorandum on Contested Involuntary Petition (Record 53). In the Memorandum, the Bankruptcy Court sets out the factual basis and legal conclusions resulting in the Order of Relief. . The Court will refer to the documents within the bankruptcy record as \"Record_, p. . Section 158 provides in pertinent part: The district courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders, and decrees.... . Other individuals and entities later joined the petition and are also appellees before the Court. Some of these appellees joined Bush's motion (see Court File No. 7). For the sake of convenience, unless necessity dictates other wise, the Court will refer to this group collectively as \"Bush” or \"appellees.” . The bankruptcy court ruled D. Taylor had standing to contest the involuntary petition under Fed.R.Bankr.P. 1011(a), which states, in relevant part, \"a nonpetitioning general partner, or alleged general partner, may contest the petition.” . To qualify as a debtor under Section 109(b), the entity must be a “person,” defined as including an \"individual, partnership, and corporation.” 11 U.S.C. § 101(41). See also 11 U.S.C. § 101(13). . The bankruptcy court’s opinion is reported at In re Taylor & Assoc., L.P., 191 B.R. 374 (Bankr.E.D.Tenn.1996). . The bankruptcy court holds a different opinion, at least for purposes related to issues arising under 11 U.S.C. § 303(b) and 11 U.S.C. § 303(h)(1) (see Record 53, p. 6): \"[T]here is no evidence in the record before the court to support a finding that Joseph C. Taylor was engaged in or operated any business other than the limited partnership business of [TALP]. While certain exhibits introduced into evidence contain references to 'Joseph C. Taylor & Associates, Inc.,' 'Joe Taylor & Assoc., L.P.,’ ‘Joe Taylor & Assoc.,’ 'Taylor & Assoc.,’ and the like, these" }, { "docid": "2443360", "title": "", "text": "establish the existence of a defined, implied partnership within the context of the various investment activities of D. Taylor and Fleish-man. V In conclusion, the petitioners have failed to establish the existence of a limited or general partnership operating under the name of Taylor & Associates, L.P. Accordingly, Taylor & Associates, L.P. is not eligible to be a debtor in bankruptcy and the Involuntary Petition against Taylor & Associates, L.P. will be dismissed. An appropriate order wilLbe entered. . The entity against whom the Involuntary Petition was filed, Taylor & Associates, L.P., has not always been referred to as \"Taylor & Associates, L.P.\" throughout the course of the contested involuntary petition. For the sake of consistency, the court will refer to the alleged debtor throughout this Memorandum as Taylor & Associates, L.P. unless a particular documented reference to the alleged debt- or is discussed, in which case the name of the alleged debtor will be quoted exactly as the name appears in the document. . Dudley W. Taylor’s standing to oppose the Involuntary Petition arises under Fed. R. Bankr. P. 1011 because James S. Bush, the original petitioner, alleged in a response to the motion to dismiss that Dudley W. Taylor was a general partner of Taylor & Associates, L.P. See In re Taylor & Assocs., L.P., 191 B.R. 374, 379-80 (Bankr.E.D.Tenn.1996). Dudley W. Taylor denies the existence of Taylor & Associates, L.P. as a partnership and denies that he was a partner. . All statutory citations referred to in this Memorandum are those in effect at the time of the filing of the Involuntary Petition. . Pursuant to § 109(b) only a \"person” may be a debtor under Chapter 7. A person is defined under the Bankruptcy Code to include an \"individual, partnership, and corporation.” See 11 U.S.C.A. § 101(41) (West Supp. 1995). See also 11 U.S.C.A. § 101(13) (West 1993). . The Amended Pretrial Order was necessitated by a Motion to Amend Pretrial Order filed by certain of the petitioners on September 26, 1997. By this motion, the petitioners sought to expand the scope of the eligibility issue" }, { "docid": "13925013", "title": "", "text": "Joseph Taylor stole a copy of the Memorandum from his office and provided it to David Andrew. Dudley Taylor has also offered additional explanations and arguments to support his allegation that Taylor & Associates, L.P. is not a partnership. Despite Dudley Taylor’s explanations and arguments, James Bush, the original petitiomng creditor, has presented evidence to clearly and sufficiently establish that the business of Taylor & Associates, L.P. brought certain individuals “within the scope of a joint business,” and those individuals placed “their money, assets, labor, or skill in commerce with the understanding that profits [would] be shared between them.” Bass, 814 S.W.2d at 41. Furthermore, a Certificate of Limited PartnersMp was filed with the Tennessee Secretary of State on May 6, 1994, which establishes Taylor & Associates as a limited partnersMp. See Tenn.Code Ann. § 61-2-201 (1989). Accordingly, the court finds that Taylor & Associates, L.P. is a limited partnersMp. V The court rejects the following two additional theories relied on by Dudley Taylor in support of his motion to dismiss: (1) the Involuntary Petition was filed in bad faith; and (2) pursuant to Bankruptcy Code § 305(a)(1), dismissal is in the best interest of all parties. In support of Ms theory of bad faith, Dudley Taylor alleges in Ms January 16, 1996 brief that Mr. Bush, the original petitioning creditor, has a “questionable” claim against Taylor & Associates, L.P. for “investment fraud,” and he should have known that twelve or more creditors existed and should have made reasonable inquiries to determine their existence. The court finds that sufficient evidence has not been presented to support these allegations. There is no evidence that the Involuntary Petition was filed in bad faith. In support of the motion to dismiss, Dudley Taylor also relies on § 305 of the Bankruptcy Code, wMch provides in material part: The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under tMs title, at any time if— (1) the interests of creditors and the debtor would be better served by such dismissal or suspension...." }, { "docid": "2433560", "title": "", "text": "reasons, the Court will GRANT Appellant’s Motion to Stay Pending Appeal, VACATE the Order of Relief entered by the bankruptcy court, and REMAND this matter for proceedings consistent with this opinion. I. PERTINENT FACTS On November 13, 1995, Bush filed an Involuntary Petition under Chapter 7 of the Bankruptcy Code against TALP. On January 26, 1996, the bankruptcy court denied a motion to dismiss the involuntary petition filed by D. Taylor. Following this ruling, the bankruptcy court, on February 8, 1996, limited the contested issues at trial to just two issues: (1) whether at least three of the petitioning creditors hold non-contingent claims not subject to a bona fide dispute against TALP, and (2) whether TALP is generally not paying its debts as they become due. It considered the pleadings of the parties and arguments of counsel made at oral argument on January 23, 1996. Among the issues considered by the bankruptcy court was TALP’s status as a statutorily-required “debtor” under 11 U.S.C. § 109(b). The bankruptcy court framed its analysis as “deter-min[ing] whether [TALP] is a partnership” under Tennessee law (Record 39, p. 22). After considering both partnership and limited partnership law, the bankruptcy court concluded TALP was a “limited partnership” (see id. at pp. 22-35). The record on appeal discloses the following relevant facts. Because the factual findings of the bankruptcy court are critical to this appeal, the facts before the bankruptcy court must be set out in considerable detail. A. Joseph C. Taylor Joseph C. Taylor (“J. Taylor”), who died on November 3, 1995, lived and worked in Knoxville, Tennessee as a securities broker and private businessman. He allegedly owned and operated several business entities under several different names. These business names at least included Joseph C. Taylor, Taylor & Associates, Inc., Taylor & Associates, Joseph C. Taylor & Associates, Inc., and Taylor & Associates, L.P. (“TALP”). A reasonable reading of the record supports the proposition that many, if not all, of these business entities, including J. Taylor as an individual, operated concurrently. Similarly, many, if not all, of these business entities at least in part concerned" } ]

[ { "docid": "15739736", "title": "", "text": "McGuff at the time in question. McGuff’s rude and unprovoked conduct assured that he would have the Hollingsworths undivided attention and the witnesses so testified. The Hollingsworths also adamantly testified as to the certainty of their identification. Finally, the identification confrontations all occurred within a relatively short time after the shooting. Consequently, the likelihood of misidentification is slight. Right To Counsel The Sixth Amendment right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated.” Kirby v. Illinois, 1972, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411; Cannon v. Alabama, 5 Cir., 1977, 558 F.2d 1211, 1217; Brown v. United States, 5 Cir., 1977, 551 F.2d 619, 620. It is clear from the record that adversary judicial proceedings had not yet begun against McGuff at the time of the confrontations. A preliminary hearing was not held until May 22, 1969, and McGuff was not indicted until August 28, 1969. Accordingly, the absence of counsel at the showups did not infringe McGuff’s Sixth Amendment right to counsel. Other issues, such as the state’s failure to advise McGuff of his right to counsel at the time of arrest and the police’s holding of McGuff incommunicado for a period of time after the arrest, are not seriously pressed on appeal. The District Court’s order adequately discussed and disposed of these and other issues. Having considered McGuff’s primary contentions on appeal, we find that the District Court was justified in denying habeas relief. AFFIRMED." } ]

[ { "docid": "4131446", "title": "", "text": "32 L.Ed.2d 411 (1972), the Supreme Court shed light upon the Wade and Gilbert decisions by stating: In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time the adversary judicial proceedings have been initiated against him. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: ‘The rationale of those cases was that an accused is entitled to counsel at any “critical stage of the prosecution,” and that a post-indictment lineup is such a “critical stage.”’ (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382-383, 88 S.Ct. 967 [, 970], 19 L.Ed.2d 1247, 1252. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever. 406 U.S. at 688, 690, 92 S.Ct. at 1881-83. Realizing that the critical determination is when the criminal prosecution began, McGee urges us to conclude that the adversary process commenced at the pretrial lineup. This we cannot do. Here, the lineup was conducted before the initiation of formal adversary proceedings. The lineup occurred on July 7, 1967, and the indictment was not returned until September 10, 1967. Only the police were involved in the lineup; the prosecution had no involvement. Moreover, the prosecution did not even know that the lineup was taking place. We hold that an adversary criminal proceeding has not begun in a case where the prosecution officers are unaware of either the charges or the arrest. Thus, this case falls under the rubric of Caver v. Alabama, 577 F.2d 1188 (5th Cir. 1978). There, this court held: An arrest on probable cause without a warrant, even though that arrest is for the crime with which the defendant is eventually charged, does not initiate adversary judicial criminal proceedings," }, { "docid": "5739906", "title": "", "text": "this case was not a finding of historical fact binding this Court under § 2254(d), but was, instead, a determination of an issue of federal law. Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1241, 51 L.Ed.2d 424 (1977). Section 2254(d) does not preclude a federal court from reviewing “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980). . In view of the lack of fact finding pertinent to the question of whether Clark had been formally charged within the meaning of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), we intimate no view on this issue. This Court has not yet decided what constitutes a formal charge. In Holland v. Perini, 512 F.2d 99, 103 n.l (6th Cir. 1975), the Court expressly reserved the question of whether an arrest warrant was sufficient to trigger the Sixth Amendment right to counsel. Other courts have reached different conclu sions on this question. United States, ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1892, 36 L.Ed.2d 401 (1973) (issuance of arrest warrant under New York law is sufficient to trigger Sixth Amendment right to counsel); cf. United States v. Duvall, 537 F.2d 15 (2d Cir. 1976) (filing of complaint pursuant to Fed.R.Crim.P. 3 and arrest warrant does not trigger Sixth Amendment right to counsel); United States, ex rel. Burton v. Cuyler, 439 F.Supp. 1173 (E.D. Pa. 1977) (citing Zelker, supra, issuance of arrest warrant under Pennsylvania law is sufficient to trigger Sixth Amendment right to counsel); cf. Lomax v. Alabama, 629 F.2d 413, 416 (5th Cir. 1980) (issuance of an arrest warrant under Alabama law, absent significant prosecutorial involvement in procuring the warrant, is not sufficient to trigger the Sixth Amendment right to counsel). The record in this case does suggest some prosecutorial involvement in obtaining the arrest warrant on the aggravated murder charge. Tr. Vol. I, p." }, { "docid": "8132758", "title": "", "text": "restricted adversarial judicial proceedings to that time when the government has committed itself to prosecute and a defendant is faced with the prosecutorial forces of organized society. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). An arrest for a crime with which the defendant is eventually charged does not initiate adversarial judicial proceedings, e.g., Caver v. Alabama, 577 F.2d 1188, 1195 (5th Cir.1978). Thus, appellant had no constitutional right to counsel at the lineup conducted after his arrest but before he was formally charged. B. Consent to Enter Warrantless arrest in the accused’s home is not permissible absent exigent circumstances or consent to enter. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980). “[T]he consent of one who possesses common authority over the premises ... is valid as against the absent, nonconsenting person with whom the authority is shared.” United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). We have previously held that the third party consent must be voluntarily given to be valid and binding against the accused. E.g., United States v. Patterson, 554 F.2d 852, 854 (8th Cir.1977) (per curiam). Whether the consent is truly voluntary is to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In examining the record, we fail to discover evidence of an involuntary consent by appellant’s mother or sister. While the record is unclear as to whether appellant’s mother or sister, or both women jointly, admitted the police officers, nothing in the record indicates that the entrance was made without their consent. The only evidence on the record regarding this issue is testimony from the arresting officers. No express or implied coercion can be found from their testimony. Appellant’s mother and sister did not testify. We therefore find appellant’s argument without merit. C. Probable Cause Probable cause exists where “ ‘the facts and circumstances within (the arresting officers’) knowledge . .. were sufficient to warrant a prudent" }, { "docid": "23364865", "title": "", "text": "the only time when certain pleas or motions might be made, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), see also Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158, 164 (1932), or a pre-arraignment preliminary hearing where a plea was entered, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050,10 L.Ed.2d 193 (1963). It was later to hold that counsel was required at an Alabama preliminary hearing although the sole purpose of the hearing was to determine whether there was sufficient evidence to warrant presenting the case to the grand jury and, if so, to fix bail, since, for reasons indicated in the opinion, this was nevertheless a “critical stage” in the criminal process. Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387, 396 (1970). In limiting the scope of Wade and Gilbert in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), Mr. Justice Stewart distinguished the eases just cited as having “involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. He continued, id. at 689-90, 92 S.Ct. at 1882, 32 L.Ed.2d at 417: The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. In his concurring opinion the Chief Justice said “that the right to counsel attaches as soon as criminal charges are formally made" }, { "docid": "9541614", "title": "", "text": "had been indicted, and therefore at a time when he was clearly entitled to a lawyer’s help.” 377 U.S. at 204, 84 S.Ct. at 1202. “Anything less,” Justice Stewart reasoned, “might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” Id., quoting Spam v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (1959) (Douglas, J., concurring). Officials had “deliberately elicited” from Massiah, as they had from Spano, incriminating remarks after those defendants had been indicted. 377 U.S. at 204, 206, 84 S.Ct. at 1201-1202, 1203. Consequently, the Court concluded, the sixth amendment had been violated by the introduction at trial of Massiah’s incriminating words, “deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id. at 206, 84 S.Ct. at 1203. The Supreme Court has not confined the sixth amendment right to counsel established in Massiah to the period following an indictment. Rather, the Court has held that the Massiah right to counsel attaches upon the commencement of “adversary judicial criminal proceedings” against an accused. See Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977) (adopting language of Kirby plurality). Thus, it is settled that the sixth amendment right to counsel attaches at an arraignment if under the applicable rules important proceedings may take place which could disadvantage the defendant. See White v. Maryland, 373 U.S. 59, 59-60, 83 S.Ct. 1050, 1050-1051, 10 L.Ed.2d 193 (1963) (per curiam); Hamilton v. Alabama, 368 U.S. 52, 53-54, 82 S.Ct. 157, 158-159, 7 L.Ed.2d 114 (1961). Moreover, the sixth amendment right to counsel attaches at a preliminary hearing. See Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464-465, 54 L.Ed.2d 424 (1977); Coleman v. Alabama, 399 U.S. 1, 7-9, 90 S.Ct. 1999, 2002-2003, 26 L.Ed.2d 387 (1970). Rule 5(b) of the Federal Rules of Criminal Procedure authorizes arraignments before a United States Magistrate for certain misdemeanors. The" }, { "docid": "908374", "title": "", "text": "by Cara O’Brien at the Hammond police station. The right to counsel does not attach until adversary proceedings have been initiated. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). The Supreme Court has indicated that this is a practical determination stat ing “when the government has committed itself to prosecute” and petitioner finds “himself faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law” then adversary proceedings have commenced. Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977); quoting Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882. This identification was made during the investigatory stage on the night of the crime prior to any commitment by the government to prosecute. In fact, petitioner was arrested on May 26, 1974 and not arraigned until October 29, 1974. However no issue has been raised in this regard. Nor does the accused have a right to have counsel present when the government conducts presentation of photographs to eyewitnesses for identification purposes. Moore, 434 U.S. at 227, n. 3, 98 S.Ct. at 464, n. 3; United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). Identifications made prior to initiation of adversary proceedings are scrutinized instead, in light of Fifth and Fourteenth Amendments’ proscription against procedures which are unnecessarily suggestive and conducive to irreparable mistaken identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Therefore, petitioner’s allegation of denial of the right to counsel is without merit. II. In his tenth ground, petitioner alleges that his legal materials were confiscated, he was denied access to the court, and he was denied the right to prepare a defense. The basis of this allegation is the fact that the St. Tammany Parish Sheriff’s Office had confiscated legal papers, research, and files from the petitioner two weeks before trial. Petitioner had been appointed co-counsel pro se to assist trial counsel in the preparation of his case. On March 23, 1976 petitioner’s counsel secured" }, { "docid": "21612647", "title": "", "text": "the contrary. We therefore address the issue as framed by the district court. It is settled constitutional law that “[a] person comes under the protection of the sixth ... amendment right to counsel from the moment judicial proceedings are initiated against him, ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Carvey v. LeFevre, 611 F.2d 19, 21 (2d Cir.1979) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)), cert. denied, 446 U.S. 921, 100 S.Ct. 1858, 64 L.Ed.2d 276 (1980). Once the right has attached, the defendant is entitled to the representation of counsel, if desired, at any “critical stage” of the criminal proceedings against him. See Michigan v. Jackson, 475 U.S. 625, 632 n. 5, 106 S.Ct. 1404, 1409 n. 5, 89 L.Ed.2d 631 (1986); Coleman v. Alabama, 399 U.S. 1, 7-10, 90 S.Ct. 1999, 2002-2004, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 1937-38, 18 L.Ed.2d 1149 (1967); see also United States v. Jackson, 886 F.2d 838, 843 (7th Cir.1989) (“Although the right [to counsel] attaches upon the commencement of adversarial proceedings, it only applies to ‘critical stages’ of those proceedings where absence of defense counsel or lack of advice might derogate from the accused's right to a fair trial.”); Meadows v. Kuhlmann, 812 F.2d 72, 76 (2d Cir.) (“The Sixth Amendment right to counsel applies only to ‘critical stages’ of a criminal prosecution.”), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Defining a “critical stage,” the Supreme Court stated in Wade: [I]n addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.... The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution. 388 U.S. at 226-27, 87 S.Ct." }, { "docid": "22253561", "title": "", "text": "meeting with Justice. First, he argues that in filing the affidavit of complaint, Justice initiated adversary judicial criminal proceedings on behalf of the state within the meaning of Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972) (plurality); and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Those cases stand for the proposition that once adversary judicial criminal proceedings have commenced, the sixth amendment right to counsel attaches. Since the affidavit of complaint was filed before Sevier was ordered to meet with Justice, Sevier contends that he was entitled to have counsel present during the meeting. Although the Supreme Court has not squarely addressed the issue of whether courts should look to federal or state law in order to determine when a state judicial criminal proceeding has commenced for purposes of Massiah and its progeny, language in two Supreme Court opinions nevertheless suggests that state law controls. See Edwards v. Arizona, 451 U.S. 477, 480-82 n. 7, 101 S.Ct. 1880, 1883 n. 7, 68 L.Ed.2d 378 (1981); Moore, 434 U.S. at 228, 98 S.Ct. at 464. The Tennessee appellate courts have held that adversary judicial criminal proceedings are initiated when a magistrate issues an arrest warrant based upon information contained in an affidavit of complaint. State v. Mitchell, 593 S.W.2d 280, 286-87 (Tenn.), cert. denied, 449 U.S. 845, 101 S.Ct. 128, 66 L.Ed.2d 53 (1980); State v. Baker, 623 S.W.2d 132, 133 (Tenn.Cr.App.1981); State v. Beal, 614 S.W.2d 77, 81 (Tenn.Cr.App.1981). Since no arrest warrant was issued in the present case before the plaintiff met with Justice, Sevier was not entitled to the assistance of counsel under a Massiah sixth amendment theory. The plaintiffs second theory is that defendant Justice, functioning as a prosecutor, subjected him to custodial interrogation in connection with the criminal complaint. Sevier contends, therefore, that he was entitled to counsel in order to protect his fifth amendment privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct." }, { "docid": "3980921", "title": "", "text": "habeas corpus on this basis. II. Tarpley also contends that the evidence was insufficient to sustain his conviction for violating § 32.31(b)(1)(A). This claim is without merit. The Texas Court of Criminal Appeals concluded that there was sufficient evidence to convict Tarpley for complicity in Hudson’s violation of the statute. Tarpley v. State, 565 S.W.2d at 529. Our review is limited to determining whether, “viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found proof beyond a reasonable doubt.” Williams v. Maggio, 695 F.2d 119, 121 (5th Cir.1983); Acosta v. Turner, 666 F.2d 949, 957 (5th Cir.1982). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Texas law, one is guilty as a party if he: “(1) is physically present at the commission of the offense; and (2) encourages the commission of the offense either by words or other agreement.” Tarpley v. State, 565 S.W.2d at 529. There was evidence that Tarpley was present when Hudson presented the stolen credit card at the motel. The fact that stolen credit cards and papers were found in his locked box suggests that he had agreed with Hudson to use the credit cards fraudulently. There was sufficient evidence to allow a jury to find guilt beyond a reasonable doubt. III. Tarpley’s complaint that counsel was not appointed to represent him prior to his indictment is equally meritless. “[A] person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 689, 690, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411, 417, 418 (1972); accord Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Lomax v. Alabama, 629 F.2d 413, 415 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1982); McGee v. Estelle, 625 F.2d 1206 (5th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981). Thus, it is only when “the government has committed itself to prosecute” that" }, { "docid": "20795850", "title": "", "text": "really arise. Nevertheless, upon scrutiny of Mrs. Padovani’s testimony with respect to factors specified by the Supreme Court, I find that it measures up favorably. The most plausible contention advanced by Solomon is that his appearance at arraignment was an “uncounseled show-up” violative of his Sixth Amendment right to counsel as incorporated by the Fourteenth Amendment. It was stated in U. S. v. Wade, 388 U.S. 218, 224-25, 87 S.Ct. 1926, 1930-1931, 18 L.Ed.2d 1149 (1967), that the right to counsel is guaranteed at “critical” stages of a criminal prosecution, and that some types of arraignment (as in Alabama) where rights may be foreclosed if not then asserted, constitute critical stages of the prosecution. See also Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967) [using the phrase “post-indictment pre-trial lineup” as identifying a “critical stage”]; Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972), and Moore v. Illinois, 434 U.S. 220, 224-31, 98 S.Ct, 458, 462-466, 54 L.Ed.2d 4¿4 (1977) [showing that not indictment but “initiation of adversary judicial criminal proceedings” is the critical time]. The language in Kirby (406 U.S. at 689, 92 S.Ct. at 1882) that right to counsel attaches only “at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment” [italics supplied] could be taken to mean that if the prosecution began when the arraignment was completed the defendant should be represented by counsel during the entire course of the arraignment. However, from a practical standpoint arraignment is ordinarily not a critical stage where advice of counsel is important but merely a formality or historical relic. As explained by Blackstone at arraignment the defendant’s name is called and he raises his hand. This is to identify the person brought into court as the person against whom the charges are being brought. It is also the time when the defendant “puts himself upon the country” or accepts trial by jury of his case. If the defendant refused to plead and put himself upon" }, { "docid": "9541615", "title": "", "text": "upon the commencement of “adversary judicial criminal proceedings” against an accused. See Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977) (adopting language of Kirby plurality). Thus, it is settled that the sixth amendment right to counsel attaches at an arraignment if under the applicable rules important proceedings may take place which could disadvantage the defendant. See White v. Maryland, 373 U.S. 59, 59-60, 83 S.Ct. 1050, 1050-1051, 10 L.Ed.2d 193 (1963) (per curiam); Hamilton v. Alabama, 368 U.S. 52, 53-54, 82 S.Ct. 157, 158-159, 7 L.Ed.2d 114 (1961). Moreover, the sixth amendment right to counsel attaches at a preliminary hearing. See Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464-465, 54 L.Ed.2d 424 (1977); Coleman v. Alabama, 399 U.S. 1, 7-9, 90 S.Ct. 1999, 2002-2003, 26 L.Ed.2d 387 (1970). Rule 5(b) of the Federal Rules of Criminal Procedure authorizes arraignments before a United States Magistrate for certain misdemeanors. The procedures specified in the Rules of Procedure for the Trial of Minor Offenses before United States Magistrates which are thereby applicable clearly implicate the sixth amendment right to counsel. See Fed.Mag.R.Crim.P. 2. Rule 5.1 provides for preliminary examinations, and proceedings under that rule fall within Coleman v. Alabama. See Fed.R.Crim.P. 5.1(a) (right to cross-examine witnesses and introduce evidence); 5.1(b) (defendant may be discharged upon showing of no probable cause); Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464-465, 54 L.Ed.2d 424 (1977); Gerstein v. Pugh, 420 U.S. 103, 122-23, 95 S.Ct. 854, 867-868, 43 L.Ed.2d 54 (1975) (right to counsel attaches under these circumstances). Thus, if Raiton’s interrogation had occurred after arraignment, preliminary hearing, or indictment, the Massiah rule would apply. Raiton’s inducements to incrimination were more than sufficient to satisfy the Massiah standard. See United States v. Henry, 447 U.S. 264, 270-74, 100 S.Ct. 2183, 2186-2187, 2188-2189, 65 L.Ed.2d 115 (1980); Brewer v. Williams, 430 U.S. 387, 399-401, 97 S.Ct. 1232, 1239-1240, 1241 (1977); note 3, supra. In this instance, however, although" }, { "docid": "908373", "title": "", "text": "1037 (5th Cir. 1980). Cara O’Brien’s identification testimony was not derived in fact from the illegal police action. Nor is this a situation where an illegal search is conducted to discover the witness. The Supreme Court has “declined to adopt a ‘per se’ or ‘but for’ rule that would make inadmissible any evidence, whether tangible or live witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.” Ceccolini, 435 U.S. at 276, 98 S.Ct. at 1060, citing Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975). The basis of Cara O’Brien’s testimony is her personal observation, the testimony does not derive from the illegal arrest. Therefore, the exclusionary rule of Wong Sun does not bar the admission of this identification, and it should not have been excluded for that reason. In ground two petitioner contends that his Sixth Amendment rights were abridged by denial of counsel at the “show up” identification. The show up in question was the crime night identification by Cara O’Brien at the Hammond police station. The right to counsel does not attach until adversary proceedings have been initiated. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). The Supreme Court has indicated that this is a practical determination stat ing “when the government has committed itself to prosecute” and petitioner finds “himself faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law” then adversary proceedings have commenced. Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977); quoting Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882. This identification was made during the investigatory stage on the night of the crime prior to any commitment by the government to prosecute. In fact, petitioner was arrested on May 26, 1974 and not arraigned until October 29, 1974. However no issue has been raised in this regard. Nor does the accused have a right to have counsel present when the government conducts" }, { "docid": "917276", "title": "", "text": "if we assume that the arrest was for robbery and murder and that the lineup conducted subsequent to that arrest was without counsel, Caver is still not entitled to habeas corpus relief. A person’s right to counsel attaches only “at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. at 688, 92 S.Ct. at 1881. Examples given in Kirby of the initiation of adversary judicial criminal proceedings— formal charge, preliminary hearing, indictment, information, or arraignment — indicate that the relevant time is when “the government has committed itself to prosecute” and “a defendant finds himself faced with the prosecutorial forces of organized society.” 406 U.S. at 689, 92 S.Ct. at 1882. An arrest on probable cause without a warrant, even though that arrest is for the crime with which the defendant is eventually charged, does not initiate adversary judicial criminal proceedings, and therefore Caver had no constitutional right to counsel at the lineup conducted subsequent to his arrest but before he was formally charged. See, e. g., McGuff v. Alabama, 566 F.2d 939 (5th Cir. 1978); United States v. Beckham, 505 F.2d 1316 (5th Cir. 1975). IV. Conclusion Regardless of the grounds for the arrest, Caver has no basis for habeas corpus relief. We affirm the district court’s denial of the writ. AFFIRMED. TUTTLE, Circuit Judge, dissenting: The majority holds that the State of Alabama provided petitioner “an opportunity for full and fair litigation of his fourth amendment claim at the time of his trial.” Because this conclusion, in my view, is in' direct conflict with our court’s decision in O’Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977), cert. denied, 433 U.S. 911, 97 S.Ct. 2981, 53 L.Ed.2d 1096 (1978), I respectfully dissent. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court addressed and decided a single issue: whether state prisoners — who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and" }, { "docid": "8132757", "title": "", "text": "erred in admitting the preindictment lineup identification. Appellant contends the evidence should have been suppressed for several reasons. First, he argues that because he was denied his constitutional right to counsel at the preindictment lineup identification, the evidence is not admissible against him. Second, he contends that the identification is inadmissible because he was arrested at home by a police officer who did not have an arrest or search warrant or consent to enter. Finally, appellant argues that his warrantless arrest was unlawful because it was not based on probable cause and thus the subsequent preindictment lineup identification is “poisonous fruit” and should have been suppressed. We find all three arguments without merit. A. Right to Counsel It is firmly established that a defendant’s sixth or fourteenth amendment right to counsel attaches only after adversarial judicial proceedings have been initiated. United States v. Wade, 388 U.S. 218, 224-26, 87 S.Ct. 1926, 1930-32, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967). The Supreme Court has restricted adversarial judicial proceedings to that time when the government has committed itself to prosecute and a defendant is faced with the prosecutorial forces of organized society. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). An arrest for a crime with which the defendant is eventually charged does not initiate adversarial judicial proceedings, e.g., Caver v. Alabama, 577 F.2d 1188, 1195 (5th Cir.1978). Thus, appellant had no constitutional right to counsel at the lineup conducted after his arrest but before he was formally charged. B. Consent to Enter Warrantless arrest in the accused’s home is not permissible absent exigent circumstances or consent to enter. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980). “[T]he consent of one who possesses common authority over the premises ... is valid as against the absent, nonconsenting person with whom the authority is shared.” United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). We have previously held that the" }, { "docid": "23364866", "title": "", "text": "of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. He continued, id. at 689-90, 92 S.Ct. at 1882, 32 L.Ed.2d at 417: The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. In his concurring opinion the Chief Justice said “that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a ‘criminal prosecution.’ ” 406 U.S. at 691, 92 S.Ct. at 1883, 32 L.Ed.2d at 419. In United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2 Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1892, 36 L.Ed.2d 401 (1973), a divided panel of this court held that the right to counsel at a line-up attached when a warrant of arrest issued under § 144 of the former New York Code of Criminal Procedure which provided that: A prosecution is commenced, within the meaning of any provision of this act which limits the time for commencing an action, when an information is laid before a magistrate charging the commission of a crime and a warrant of arrest is issued by him, or when an indictment is duly presented by the grand jury in open court, and there received and filed. However, the author of the Robinson opinion wrote for the court in United States v. Counts, 471 F.2d 422, 425 & n.4 (2 Cir.)," }, { "docid": "1433055", "title": "", "text": "similar requests to see a lawyer inadmissible without identifying the source of the constitutional right involved. Baker v. U.S., 357 F.2d 11, 13 -14 (5th Cir. 1966); Fagundes v. U.S., 340 F.2d 673, 677 (1st Cir. 1965). Fagundes relied principally on the Supreme Court’s decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), a Sixth Amendment case that was superseded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and subsequently limited to its particular facts, Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); Johnson v. New Jersey, 384 U.S. 719, 733-734, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882 (1966). I also question the majority’s dismissal of the defendant’s Sixth Amendment claim. The majority claims that the Sixth Amendment right to the assistance of counsel has no bearing at all in this case because the explicit guarantees of that amendment had not yet attached at the time the defendant made his request for counsel. See Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). The majority’s conclusion, however, is at odds with a long line of cases holding that an accused’s attempt to contact a lawyer, even before arrest, may not consistently with the Sixth Amendment be used at trial to support an inference of guilt. See, e.g., United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980); Zemina v. Solem, 438 F.Supp. 455, 466 (D.S.D. 1977), aff’d, 573 F.2d 1027 (8th Cir. 1978) (per curiam); United States v. Liddy, 509 F.2d 428, 443-45 (D.C. Cir. 1974) (en banc), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975); United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973). Because the exercise of the right to counsel in these cases came before the formal attachment of Sixth Amendment guarantees under Kirby and Moore, these" }, { "docid": "3980922", "title": "", "text": "credit card at the motel. The fact that stolen credit cards and papers were found in his locked box suggests that he had agreed with Hudson to use the credit cards fraudulently. There was sufficient evidence to allow a jury to find guilt beyond a reasonable doubt. III. Tarpley’s complaint that counsel was not appointed to represent him prior to his indictment is equally meritless. “[A] person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 689, 690, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411, 417, 418 (1972); accord Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Lomax v. Alabama, 629 F.2d 413, 415 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1982); McGee v. Estelle, 625 F.2d 1206 (5th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981). Thus, it is only when “the government has committed itself to prosecute” that the defendant is entitled to counsel. Kirby, 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417; Moore, 434 U.S. at 228, 98 S.Ct. at 465, 54 L.Ed.2d at 433. Nothing in the record indicates that adversary judicial proceedings had been commenced against Tarpley prior to the return of the indictment against him. It is settled that neither his arrest nor his appearance before the magistrate triggered the right to counsel. See McGee, 625 F.2d at 1208, 1209. Tarpley simply was not entitled to counsel at the time of the claimed deprivation. Even if Tarpley could show that he was entitled to counsel prior to his indictment, he has shown no prejudice arising from his failure to receive appointed counsel at that time. His only complaint is that he did not receive the examining trial provided for by Texas Code Crim.Proc.Ann. art. 16.01 (Vernon 1977). Yet he does not explain how counsel would have obtained an examining trial for him. Under Texas law, a defendant loses his right to an examining trial when" }, { "docid": "1433056", "title": "", "text": "Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). The majority’s conclusion, however, is at odds with a long line of cases holding that an accused’s attempt to contact a lawyer, even before arrest, may not consistently with the Sixth Amendment be used at trial to support an inference of guilt. See, e.g., United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980); Zemina v. Solem, 438 F.Supp. 455, 466 (D.S.D. 1977), aff’d, 573 F.2d 1027 (8th Cir. 1978) (per curiam); United States v. Liddy, 509 F.2d 428, 443-45 (D.C. Cir. 1974) (en banc), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975); United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973). Because the exercise of the right to counsel in these cases came before the formal attachment of Sixth Amendment guarantees under Kirby and Moore, these decisions are necessarily in conflict with the majority’s understanding of the Sixth Amendment." }, { "docid": "11693382", "title": "", "text": "Massachusetts. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The district court correctly focused on a long line of Supreme Court cases establishing that the “core purpose” of the guarantee of counsel is to provide assistance to criminal defendants at trial and at “critical” pretrial proceedings, and holding that the right to counsel attaches only when adversary judicial criminal proceedings are initiated against an individual “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)). See, e.g., Michigan v. Jackson, — U.S. -, 106 S.Ct. 1404, 1407-08, 89 L.Ed.2d 631 (1986); Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1145, 89 L.Ed.2d 410 (1986); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 483-84, 88 L.Ed.2d 481 (1985); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977); United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973); United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). In the present case, at the time Judd informed the officers of the location of his automobile, he had been arrested on a fugitive warrant and had waived extradition proceedings, but had not been formally charged. It is firmly established that the sixth amendment right to counsel does not attach at the time of a defendant’s arrest. United States v. Gouveia, 467 U.S. at 190, 104 S.Ct. at 2298-99. Nor had the right to counsel attached at Judd’s extradition hearing. As we have previously observed, an extradition hearing has a “modest function” not involving the question of guilt or innocence, and is not a “criminal proceeding” within the meaning of the sixth amendment. Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir.1978). See also McDonald v. Burrows, 731 F.2d 294, 297 (5th Cir.1984), cert." }, { "docid": "23364867", "title": "", "text": "against an accused and he becomes the subject of a ‘criminal prosecution.’ ” 406 U.S. at 691, 92 S.Ct. at 1883, 32 L.Ed.2d at 419. In United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2 Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1892, 36 L.Ed.2d 401 (1973), a divided panel of this court held that the right to counsel at a line-up attached when a warrant of arrest issued under § 144 of the former New York Code of Criminal Procedure which provided that: A prosecution is commenced, within the meaning of any provision of this act which limits the time for commencing an action, when an information is laid before a magistrate charging the commission of a crime and a warrant of arrest is issued by him, or when an indictment is duly presented by the grand jury in open court, and there received and filed. However, the author of the Robinson opinion wrote for the court in United States v. Counts, 471 F.2d 422, 425 & n.4 (2 Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973), that there was “no reason ... to reach the question whether the issuance of a federal arrest warrant may be likened to that of a New York state one.” The Government’s claim that the question thus reserved in Counts was decided in its favor by United States v. Messina, 507 F.2d 73 (2 Cir. 1974), cert. denied, 420 U.S. 993, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1975), in which this writer spoke for the court, is in error. Examination of the briefs shows that no claim of deprivation of counsel was made on the basis that a complaint had issued before Messina’s arrest; the claim was that the Sixth Amendment was violated by the agents’ dealing with him alone after he had been arraigned and counsel had been appointed. The decision in favor of the Government rested on the point that Messina, after having consulted counsel, deliberately decided to go through with a plan, formulated by him prior to arraignment, to allow the" } ]

[ { "docid": "22250600", "title": "", "text": "Health Center v. Hunt, No. CA-766 (Ohio Ct.App. Aug. 2, 1985); Pickaway County General Health Disk v. Administrator, Ohio Bureau of Employment Serv., No. 84-CA-12 (Ohio Ct.App. July 1, 1985); Reed v. Dodge, No. E-84-41 (Ohio Ct.App. March 15, 1985). The foregoing analysis reveals that the courts of Ohio would not preclude Cooper from asserting, her discrimination claims because of the prior judicially-affirmed OBES proceedings. The district court’s refusal to apply the doctrine of collateral estoppel is affirmed. II. COOPER’S CLAIMS OF INTENTIONAL DISCRIMINATION The City next challenges the district court’s finding that plaintiff proved intentional discrimination, in violation of Title VII and § 1981. The district court concluded that Cooper had established intentional discrimination under two theories: disparate treatment and retaliatory discharge. The City argues that the district court’s conclusions on the issues are legally erroneous. A. Disparate Treatment Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(l), generally prohibits race or sex discrimination in any employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796, 93 S.Ct. 1817, 1821, 36 L.Ed.2d 668 (1973). A Title VII plaintiff bears the burden of proving that, it is more probable than not that she was discriminated against on a proscribed basis. The district court correctly found that Cooper could establish a prima facie case of disparate treatment pursuant to McDonnell Douglas if she showed 1) that she was female and a member of a racial minority; 2) that she and a similarly situated white or male person received dissimilar treatment; and 3) that sufficient evidence exists from which the court can find a causal connection between race or sex and the alleged acts of the defendants. The City contends that Cooper failed to establish a prima facie case, as she did not prove that she was treated differently than similarly situated white and male employees. It argues that the district court, in concluding that a prima facie case had been established, erroneously compared Cooper to employees who were not similarly situated. Specifically, the City objects to the district court’s comparing of Cooper’s record to those of Lawrence Sindalar and Ken" } ]

[ { "docid": "22283617", "title": "", "text": "(1991). Because Hollins alleges racial discrimination under each provision for acts arising out of the same facts and circumstances, we will consider these claims together. Cf. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). We have described the familiar McDonnell Douglas analysis as follows: (1) the plaintiff must establish a prima facie case of racial discrimination; (2) the employer must articulate some legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff must prove that the stated reason was in fact pre-textual. Harrison v. Metropolitan Gov’t of Nashville and Davidson County, 80 F.3d 1107, 1115 (6th Cir.1996). Hollins alleged disparate treatment with respect to the terms and conditions of her employment. In the absence of direct evidence of discriminatory treatment, proof of discriminatory motive can be inferred from the mere fact of differences in treatment. See Shah v. General Elec. Co., 816 F.2d 264, 267 (6th Cir.1987). In order to satisfy the requirements of the prima facie case of disparate treatment the plaintiff must produce evidence that: (1) she is a member of a protected class, and (2) for the same or similar conduct she was treated differently from similarly situated non-minority employees. See Harrison, 80 F.3d at 1115; Mitchell, 964 F.2d at 583; Beaven v. Commonwealth of Kentucky, 783 F.2d 672, 676 (6th Cir.1986). We have “frequently phrased the requirements of a prima facie claim of disparate treatment,” Mitchell, 964 F.2d at 582, in the above terms. However, in Cooper v. City of North Olmsted, 795 F.2d 1265, 1270 (6th Cir.1986), this court referenced a third requirement; that is, “sufficient evidence ... from which the court can find a causal connection between race ... and the alleged acts of the defendants.” The Cooper court merely approved the district court’s articulation of this third element, without citing any authority; and, without discussion of the causal connection requirement, the court remanded the case for reconsideration of whether there were similarly situated employees treated differently from the plaintiff. As a consequence, Cooper has introduced some confusion into the case law in this circuit over the nature of the prima facie" }, { "docid": "9744846", "title": "", "text": "and thus her claim of direct discrimination fails. It is true, as the majority notes, that the statements listed above were made in the context of a discussion between Donnelly and four female magistrates, including Birch, regarding the women’s salary concerns. However, the record reveals no evidence permitting a finding of a connection between Donnelly’s discriminatory views and the setting of Birch’s salary. Therefore, while the statements can be used as circumstantial evidence of discrimination against Birch, they fail to permit an inference of discrimination based on direct evidence. See Anderson v. Twitchell-A Tyco Int'l Ltd., 76 F.Supp.2d 1279, 1285 (M.D.Ala.1999). In the absence of direct evidence of sex discrimination, the plaintiff may also establish her claim by producing circumstantial evidence of discrimination. Title’ VII requires that a plaintiff meet the familiar McDonnell Douglas test when establishing a claim of discrimination using circumstantial evidence. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582(6th Cir.1992) (Title VII sex discrimination case applying the four-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L,Ed.2d 668 (1973)). To satisfy the four-part test for a prima facie case of discrimination, the plaintiff must show that: (1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) a similarly situated person outside the protected class received more favorable treatment. Id. Birch is clearly a member of a protected class, and has identified an adverse employment action in the form of the difference between her salary and that of her male co-workers. However, Birch is unable to identify a male co-worker who is similarly situated. Therefore, Birch is unable to meet her prima facie burden. Birch is required, ■ to meet her prima facie burden, to identify a non-protected employee who was similarly situated, or directly comparable, in all material respects. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998); McGowan, 2004 WL 1752867, at *2. The most’ important factors to be considered may vary from case to case, but" }, { "docid": "8379436", "title": "", "text": "Pratt v. Brown Machine Co., 855 F.2d 1225, 1235 (6th Cir.1988) (holding that explicit at-will language in the employee handbook served “to negate the legitimacy of any expectation [the employee] may have had based on [his manager’s] representations” ). Based upon the foregoing discussion, it is clear that in this case, Plaintiff’s claim that she had a just cause employment contract, even when construed under Michigan law, is without merit and, therefore, even under Michigan law, Defendant is entitled to summary judgment on Count I of Plaintiff’s Complaint. C. Plaintiffs Claims of Race Discrimination It is well-established that the burden is on an employment discrimination plaintiff to establish a prima facie, case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Carden v. General Motors, 156 Mich.App. 202, 210, 401 N.W.2d 273 (1986), lv. den., 428 Mich. 891 (1987). Under Michigan’s Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq., an employment discrimination plaintiff can establish his prima facie case by proving either (1) that he was accorded disparate treatment because of his race or (2) that his employer engaged in intentional discrimination. Wyatt v. Southland Corporation, 162 Mich.App. 372, 374-375, 412 N.W.2d 293 (1987); Dixon v. W. W. Grainger, Inc., 168 Mich.App. 107, 114, 423 N.W.2d 580 (1987). Plaintiff, here, has not alleged any discriminatory predisposition on the part of EDS supervisors who made the decision to fire her so as to make out a claim under an intentional discrimination theory, nor has she presented any facts from which to infer that she is alleging intentional discrimination. Thus, the Court construes Plain tiff’s Elliot-Larsen claim as one of disparate treatment. To make out a prima facie claim of disparate treatment, the plaintiff must produce evidence which at a minimum established that he was a member of a protected class and that for the same or similar conduct he was treated differently than similarly-situated non-minority employees. Davis v. Monsanto Chemical Co.," }, { "docid": "7628947", "title": "", "text": "“[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). “Proof of discriminatory motive is critical” for such claims. Id. Disparate impact claims, on the other hand, “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. at 336 n. 15, 97 S.Ct. 1843. “Proof of discriminatory motive ... is not required under a disparate-impact theory.” Id. The familiar three-step eviden-tiary framework for proving a disparate treatment case was set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiffs must first establish a prima facie case, the elements of which vary according to the circumstances. Id. at 802 & n. 13, 93 S.Ct. 1817. For a prima facie case of wage discrimination, plaintiffs must show “membership in a protected class ... , and that [they] were performing work substantially equal to that of white employees who were compensated at higher rates than they were.” Coward v. ADT Sec. Sys., Inc., 140 F.3d 271, 273 (D.C.Cir.1998) (internal quotations and alterations omitted); see id. at 275. Once plaintiffs establish a prima facie case of disparate treatment, under the second step of McDonnell Douglas “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the challenged employment practice. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the defendant carries this burden, the third step requires that plaintiffs be “afforded a fair opportunity to show that [the] stated reason ... was in fact pretext” for discrimination. Id. at 804, 93 S.Ct. 1817. For a disparate treatment case finally to reach the jury, the court must find in light of all the evidence that “the plaintiff has met his burden of showing that a reasonable jury could conclude that he had suffered [intentional] discrimination.” Aka" }, { "docid": "19960596", "title": "", "text": "in the context of summary judgment merely by alleging [her] condition to be so”) Because Cas-key neither .received continuing treatment by a health care provider nor suffered a chronic condition, her various afflictions do not amount to a serious health condition, and therefore she had no right to FML on May 21, 22, and 27. B. Discrimination Based on Sex Caskey next claims that Hill’s improperly discriminated against her because of her sex by placing her, and not male employees, on the DML stage of the disciplinary process after the defective product incident in March 2003. Under Title VII of the Civil Rights Act of 1964, it is unlawful for employers “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). Caskey presented no direct evidence of discrimination,-so we analyze her indirect proof using the familiar burden-shifting method under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ordinarily under McDonnell Douglas, a plaintiff must make a prima facie case of gender discrimination by showing: (1) she is a member of the protected class, (2) she met her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) her employer treated similarly situated male employees more favorably. Peirick v. Indiana University-Purdue Univ. Indianapolis Athletics Dept., 510 F.3d 681, 687 (7th Cir.2007). As the district court correctly pointed out, in claims of discriminatory discipline such as this one, “the second and fourth prongs of McDonnell Douglas merge.” Lucas v. Chicago Transit Auth., 367 F.3d 714, 728 (7th Cir.2004). Accordingly, the analysis of the employer’s expectations falls by the wayside, and a “plaintiff must establish that [s]he received dissimilar — and more harsh — punishment than that received by a similarly situated employee who was outside the protected class.” Id. A similarly situated employee need not be “identical,” but the plaintiff must show that the other employee “dealt with the same supervisor, [was] subject to the same standards, and had engaged in similar conduct without such differentiating" }, { "docid": "15011265", "title": "", "text": "always be the case as the Yateses contend. Cf. Shah, 816 F.2d at 268 (“individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiffs protected group.”) (emphasis added) (citation omitted). As this Court has recognized, the prima facie inquiry “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Irvin v. Tenn., 826 F.2d 1063, *3 n. 4 (6th Cir. Aug.20, 1987) (Table) (quoting Furnco, 438 U.S. at 577, 98 S.Ct. 2943). A prima facie case is established whenever the actions taken by the property owner lead one to reasonably “infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion” such as race. See Furnco, 438 U.S. at 576, 98 S.Ct. 2943 (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Keeping this ultimate inquiry in mind, we find that so long as “additional evidence” exists — beyond showing the first three elements of the McDonnell Douglas test — that indicates discriminatory intent in “light of common experience,” the required “inference of discrimination” can be made in satisfaction of the prima facie case. This holds true even if the plaintiff is not necessarily able to identify similarly-situated individuals outside of the relevant protected group who were treated more favorably. The “additional evidence” which can be relied upon to establish a prima facie claim depends on the attendant facts and circumstances. See Blair, 505 F.3d at 529 (citing cases that “merely [offered] various context-dependent ways by which plaintiffs may establish aprima facie case, and [did] not [establish] rigid requirements that all plaintiffs with similar claims must meet regardless of context”) (citing McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817). In this" }, { "docid": "10003868", "title": "", "text": "450 U.S. at 253, 101 S.Ct. at 1094. However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84). The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiff’s protected group.” B. Schlei & P. Grossman, supra, at 1291 (2d ed. 1983). A Title VII plaintiff supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test (as restated in Morvay) by identifying those individuals who are allegedly treated differently. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis supplied). Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he" }, { "docid": "5972900", "title": "", "text": "and denied promotions on the basis of sex and race (Complaint, ¶¶ 6-18). In order to succeed in a Title VII action for disparate treatment employment discrimination based on race or sex, a plaintiff must demonstrate that the adverse employment decisions would not have been made “but for” her race or sex. See Gutz-willer v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988). A plaintiff can make this showing by presenting direct evidence, or by inference, from a prima facie showing of discrimination using the evidentiary framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In order to establish a prima facie case of disparate treatment, a plaintiff must at a minimum show that she is a member of protected class and she was treated differently than persons who are not members of a protected class. See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 658 (6th Cir.1999). Thus, to prove a prima facie case of disparate treatment under Title VII, a plaintiff must prove that (1) she is a member of protected class; (2) she was qualified for the job; (3) an adverse employment action was taken against her, and (4) she was treated differently than similarly situated non-protected employees. See O’Hara v. Mt. Vernon Bd. of Educ., 16 F.Supp.2d 868, 886 n. 16 (S.D.Ohio 1998). In order to prove the fourth element, a plaintiff must produce evidence that the “relevant other employees are ‘similarly situated in all respects.’ ” See Hollins, 188 F.3d at 659 (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)). Once the plaintiff establishes the prima facie case, the employer must meet its burden of production to establish a legitimate, nondiscriminatory reason for the plaintiffs discharge or denial of promotion. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts back to the plaintiff to show by a preponderance" }, { "docid": "22681950", "title": "", "text": "discrimination and applied the McDonnell Douglas/Burdine evidentiary framework in analyzing the factual and legal merits of Plaintiffs claims. 2. Plaintiff Failed to Establish a Prima Facie Case of Race Or Age Discrimination. It is well-established that the burden is on an employment discrimination plaintiff to establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1972); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). As the District Court explained, under McDonnell Douglas and Burdine, Plaintiff can establish a prima facie case of discrimination by showing that (1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for the position; and (4) she was replaced by a person outside the class. The District Court held that Plaintiff satisfied the first three McDonnell Douglas/Burdine elements but failed to satisfy the fourth element — i.e., she failed to show that she was replaced by a white or younger person. Therefore, the District Court held that Plaintiff failed to establish a prima facie case of either race or age discrimination. Although the District Judge found no prima facie case had been established by Plaintiff because of the lack of the fourth “replaced-by-a-‘non-protected’-person” element of the McDonnell Douglas/Burdine criteria, a plaintiff can also make out a prima facie case by showing, in addition to the first three elements, that “a comparable non-protected person was treated better”. As the Sixth Circuit has frequently phrased the requirements of a prima facie claim of disparate treatment using such a “comparable non-protected person was treated better” element as one of the requisites, the plaintiff must produce evidence which at a minimum establishes (1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than similarly-situated non-minority employees. See e.g., Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989); Long v. Ford Motor Co.," }, { "docid": "17304745", "title": "", "text": "2505). Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the court should determine “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, 477 U.S. at 251, 106 S.Ct. 2505. in. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race....” 42 U.S.C. § 2000e-2(a)(l). Thus, a plaintiff can recover under Title VII by showing he suffered racially-motivated disparate treatment by his employer. To prevail in a disparate treatment action, a plaintiff must prove by a preponderance of the evidence that he suffered intentional discrimination. See Grano v. Dep’t of Development of City of Columbus, 637 F.2d 1073, 1081 (6th Cir.1980). A plaintiff need not offer direct evidence of such discrimination. However, when seeking to prove intentional discrimination with circumstantial evidence, the plaintiff must make the showing described in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The McDonnell Douglas-Burdine framework consists of three stages. At the first stage, the plaintiff must establish a prima facie case of employment discrimination. To make a prima facie case, the plaintiff must show that he (1) was a member of a protected class; (2) suffered an adverse action; (3) was qualified for the position; and (4) was replaced by a person outside the protected class or was treated differently from a similarly-situated employee outside the plaintiffs class. See Wine v. Wal-Mart Stores, Inc., 1999 WL 191394, *1 (6th Cir. Mar.19, 1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992). If the plaintiff makes a prima facie case, the defendant is presumed to have violated Title VII. To overcome this presumption, the defendant must set forth evidence showing that the adverse employment" }, { "docid": "22045678", "title": "", "text": "case, defendant conceded, for purposes of ruling on the motion for summary judgment, the first, second, and third elements of a prima facie case. Thus, the only element in dispute is the fourth element, which may be satisfied by showing that plaintiff was replaced by a person outside of the protected class or, alternatively, that similarly situated non-protected employees were treated more favorably than plaintiff. In determining that plaintiff had not satisfied the fourth element, and consequently, that he had not established a prima facie case of race discrimination under Title VII, the district court stated that it was guided by our decision in Shah v. General Elec. Co., 816 F.2d 264, 268 (6th Cir.1987). The district court relied on the following language in Shah: “Absent proof that other employees were similarly situated, it is not possible to raise an inference of discrimination.” Shah, 816 F.2d at 270. It concluded that plaintiff had failed to establish a prima facie case of race discrimination because he was not able to show that he was similarly situated to the other employees who participated in the after-hours party. Accordingly, the district court granted defendant’s motion for summary judgment on plaintiff’s Title VII claim. The district court, however, misread Shah. In Shah we stated: However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” The essence of a disparate treatment ease is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Accordingly, “individual disparate treatment ... cases generally require indirect evidence from whieh an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiffs" }, { "docid": "10003869", "title": "", "text": "that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiff’s protected group.” B. Schlei & P. Grossman, supra, at 1291 (2d ed. 1983). A Title VII plaintiff supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test (as restated in Morvay) by identifying those individuals who are allegedly treated differently. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis supplied). Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he was fired, without more, simply fails to present evidence that the plaintiff “was rejected under circumstances which give rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253,101 S.Ct. at 1094. Cf. Teamsters, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. (“An employer’s isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based.”). We do not mean to suggest that a Title VII plaintiff seeking to prove disparate treatment must always present evidence establishing the last prong of the McDonnell Douglas prima facie test. See Beaven v. Kentucky, 783 F.2d 672, 676 (6th Cir.1986). We do note, however, that in cases where courts have found that a Title VII plaintiff presented a prima facie case without proof that the employer continued to solicit applications, some additional evidence tended to establish the inference of discrimination. In particular, the plaintiffs were able to point to other individuals who were more favorably treated. For example, in Beaven, supra, we held that" }, { "docid": "13749872", "title": "", "text": "construing all inferences from that evidence in the light most favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for that party. A non-moving party cannot withstand summary judg ment, however, by introduction of a “mere scintilla” of evidence in its favor. See Ciminillo, 434 F.3d at 464. Disparate Treatment Russell raises claims of racial discrimination under both Title VII and section 4112 of the Ohio Revised Code. Those federal and state claims may be analyzed together, however, because “Ohio’s requirements are the same as under federal law.” Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir.2003). Lacking any direct evidence of the defendants’ racial discrimination, Russell attempted to prove her claims of disparate treatment by use of circumstantial evidence of discrimination according to the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Pursuant to that mode of analysis, a plaintiff must first establish a prima facie case of discrimination by showing that: “(1) she is a member of a protected group,(2) she was subject to an adverse employment decision, (3) she was qualified for the position, and (4) she was replaced by a person outside of the protected class.” Carter, 349 F.3d at 273. A plaintiff may also satisfy the fourth prong of a prima facie case showing by adducing evidence that she “was ... treated differently than similarly situated non-protected employees.” Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir.2001). Establishment of a prima facie case by the plaintiff “creates a rebuttable presumption of discrimination, and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for taking the challenged employment action. If the defendant satisfies this burden, the plaintiff ‘must then prove that the proffered reason was actually a pretext to hide unlawful discrimination.’ ” Id. (citations omitted). To establish such pretext, a plaintiff must show “either (1) that the proffered reasons had no basis" }, { "docid": "23229442", "title": "", "text": "2552. Although courts weighing summary judgment motions in employment cases must take special care not to invade the province of the fact finder, employment cases are governed by the same rules that govern other summary judgment cases, and they are equally amenable to summary disposition so long as there is no genuine dispute as to material facts. Giannopoulos v. Brack & Brock Confections, Inc., 109 F.3d 406,410 (7th Cir.1997). 1. Racial Discrimination Claim In Count I of Gonzalez’s Amended Complaint, Gonzalez contends that in December 1993 she was subject to disparate treatment in Ingersoll’s layoff policy because other similarly situated white employees were not subjected to layoff. She further contends that Ingersoll’s articulated reason for the layoff, downsizing, was merely a pretextual disguise for racial discrimination. Title VII makes it unlawful for an employer to discriminate against an employee because of the employee’s race or national origin. 42 U.S.C. § 2000e-2(a)(l). Proof of intentional discrimination is required under a disparate treatment analysis. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A Title VII plaintiff can satisfy her burden of proof by two avenues: (1) she may present direct evidence of discriminatory intent or, because of the difficulty in directly proving discrimination, (2) she may use the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996). Gonzalez relies upon the McDonnell Douglas avenue. Under the McDonnell Douglas burden-shifting approach, Gonzalez must initially establish a prima facie case of racial and/or ethnic discrimination by a preponderance of the evidence. Pasqua, 101 F.3d at 516. To establish a prima facie case of racial discrimination requires Gonzalez to show she was (1) in a protected class; (2) performing her job satisfactorily; (3) the subject of a materially adverse employment action; and (4) others outside of the protected class were treated more favorably. Young v. Will County Dept. of Public Aid, 882 F.2d 290, 293 (7th Cir.1989). Once Gonzalez establishes a prima facie" }, { "docid": "15011264", "title": "", "text": "discrimination. See id. The something “more” or “additional evidence” typically consists of favorable treatment for similarly-situated individuals not within the plaintiffs protected group. See id. (declaring that an employment discrimination plaintiff “supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test ... [i]n particular, by identifying those individuals who are allegedly treated differently.”); see also Talley, 61 F.3d at 1247 (interpreting Shah to hold that the fourth element of the McDonnell Douglas prima facie case is established by “showing either that the plaintiff was replaced by a person outside of the protected class or that similarly-situated non-protected employees were treated more favorably than the plaintiff’); Mitchell, 964 F.2d at 583-84 (holding that the plaintiff did not satisfy a prima facie test because he did not show he was treated differently than similarly-situated individuals). But while a discriminatory inference is usually, and perhaps most readily, generated through evidence of unfavorable treatment of the minority plaintiff vis-a-vis similarly-situated individuals, McDonnell Douglas and its progeny do not require this always be the case as the Yateses contend. Cf. Shah, 816 F.2d at 268 (“individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiffs protected group.”) (emphasis added) (citation omitted). As this Court has recognized, the prima facie inquiry “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Irvin v. Tenn., 826 F.2d 1063, *3 n. 4 (6th Cir. Aug.20, 1987) (Table) (quoting Furnco, 438 U.S. at 577, 98 S.Ct. 2943). A prima facie case is established whenever the actions taken by the property owner lead one to reasonably “infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion” such as race. See Furnco," }, { "docid": "1250120", "title": "", "text": "and after the discovery deadline set by the court had expired, defendants moved to dismiss the complaint for failure to state a claim, Rule 12(b)(6), F.R.Civ.P., or, alternatively, for summary judgment. As both parties have submitted material for the court’s consideration beyond the pleadings, the motion will be considered one for summary judgment under Rule 56, F.R.Civ.P. See Rule 12(c), F.R.Civ.P. Plaintiff contends that the complaint presents two alternate theories of liability: disparate treatment and disparate impact. The summary judgment motion will be discussed separately as to each theory. Disparate Treatment Allegation A disparate treatment claim exists when the plaintiff charges that the employer “treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 1854, n.15, 52 L.Ed.2d 396 (1977). Insofar as the complaint alleges that plaintiff was harassed and discharged' because of her race and sex, it attempts to raise a disparate treatment controversy. Defendants argue, however, that the plaintiff has failed to set forth the elements of a prima facie case of discriminatory discharge as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and its progeny, especially Powell v. Syracuse University, 580 F.2d 1150 (2nd Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978). The Prima Facie Case McDonnell Douglas posits the requisite order and allocation of proof in a “private, non-class action challenging employment discrimination.” McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 800, 93 S.Ct. at 1823. Initially, plaintiff must establish a prima facie case of discrimination. In a case alleging discriminatory failure to hire, this can be done by showing (1) that plaintiff belongs to a minority; (2) that he applied for and was qualified for a job for which applicants were being sought; (3) that despite his qualifications he was rejected; and (4) that," }, { "docid": "21458625", "title": "", "text": "meet its burden of production once the plaintiff demonstrates prima facie discrimination, “the unrebutted presumption of discrimination stands.” Turnes, 36 F.3d at 1061 (citing Joshi v. Florida State University Health Ctr., 763 F.2d 1227, 1236 (11th Cir. 1985)). Once the defendant satisfies its burden of production, the inquiry becomes whether the plaintiff can show that the defendant’s proffered reason was a pretext for discrimination. “Disbelief of the defendant’s proffered reasons, together with the prima facie case, is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer’s proffered reasons for its challenged actions.” Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir.1997)(citing St. Mary’s, 509 U.S. at 511). To survive summary judgment at this point, the plaintiff must come, forward with evidence sufficient “to permit a reasonable fact finder to conclude that the employer’s proffered non-diseriminatory reasons were not what actually motivated its conduct.” Id. at 1528. To establish a prima facie ease under the framework described above, Plaintiff must present circumstantial evidence sufficient to create an inference that an employment-related decision was motivated by Plaintiffs age, gender or race. See McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case, a plaintiff must allege: (1) he was a member of a protected group, (2) an adverse employment action took place, (3) he and a similarly situated non-protected person received dissimilar treatment, and (4) sufficient evidence, either circumstantial or direct, exists to infer a nexus or causal connection between race and the disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, Bell alleges that Defendant discriminated against him by transferring him from teaching an Eighth grade class to teaching a Seventh grade class. The only alleged “adversity” the court can glean from the record is the fact that the transfer required Bell to leave a subject he loved teaching. (Tr. at 65.) Further, Bell opposed the transfer because he claims that he was required to go through new books, create new lesson plans and engage in new" }, { "docid": "9839976", "title": "", "text": "Jones offers no evidence of “an existing policy which itself constitutes discrimination,” Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th Cir.1990), his claim rests on indirect evidence of discrimination. In Title VII cases based on indirect evidence, plaintiff has the initial burden of establishing á prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If plaintiff does so, then defendant must “articulate some legitimate, nondiscriminatory reason” for the challenged personnel action. Id. Plaintiff then bears the ultimate burden of demonstrat ing that defendant’s stated reason is in fact a pretext for unlawful discrimination. Id. at 804. The district court found that Jones failed to establish a prima facie case of disparate treatment regarding his discipline by the Post. We agree. A prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination. Cf. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (articulating prima fa-cie case for discriminatory treatment in context of failure to promote claim); id. at 254 n. 6, 101 S.Ct. 1089 (The prima facie “standard is not inflexible, as ‘[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations.’ ”) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817). One of the ways this third prong may be met, and the method chosen by Jones here, is by attempting to show that the employer treated similarly situated employees differently. In the instant case, Jones contends that Rhonda Canino took orders for pastries from her husband’s business during business hours, but the Post did not discipline her for this alleged conduct. Since the Post reprimanded Jones for using Post" }, { "docid": "23565961", "title": "", "text": "and certainly the worst of it — occurred unbeknownst to plaintiff, the conduct was not so frequent, humiliating, or threatening as to create a hostile environment. Accordingly, we affirm the district court’s grant of summary judgment in defendant’s favor on Whittaker’s hostile work environment claim. C. Whittaker Has Failed To Show an Adverse Employment Action Title VII also prohibits employers from treating employees differently on the basis of sex. See 42 U.S.C. § 2000e-2(a)(1). To establish a claim of sex discrimination, or disparate treatment, a plaintiff can proceed either directly, by presenting direct and/or circumstantial evidence of the employer’s discriminatory intent, or indirectly, through the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Wyninger, 361 F.3d at 978. The McDon nell Douglas burden-shifting approach can also be used to establish indirectly a claim of retaliation in violation of 42 U.S.C. § 2000e-3(a). See Wyninger v. New Venture, 361 F.3d 965, 981 (7th Cir.2004). Whittaker here proceeds under the indirect method on both her sex discrimination and retaliation claims. Accordingly, we will address these two claims in tandem. To establish a sex discrimination claim under the indirect method, the McDonnell Douglas burden-shifting approach provides as follows: (1) the plaintiff must establish a prima facie case of discrimination based on her membership in a protected class; (2) once a prima facie case is made, a presumption of discrimination is established and the burden shifts to the defendant to provide a legitimate, non discriminatory reason for the challenged action; and (3) once the defendant meets that burden, the plaintiff must establish that those proffered reasons were mere pretext. See, e.g., Gordon v. United Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir.2001). In turn, to establish a prima facie case of sex discrimination, a plaintiff must show that (1) she is a member of a protected class; (2) she was meeting her employer’s legitimate performance expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated male employees. Patterson v. Avery Dennison Corp., 281" }, { "docid": "22283619", "title": "", "text": "elements of the disparate treatment claim. We are convinced that a separate “causal connection” element does not fit neatly within the McDonnell Douglas burden-shifting paradigm the Supreme Court has prescribed for evaluating the evidence in a disparate treatment case. The inferential method of establishing discrimination is not a “ ‘mechanized or ritualistic’ ” inquiry, but “ ‘is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’ ” Beaven, 783 F.2d at 676 (citations omitted). Adding a separate causal connection requirement as an element of the prima facie case of disparate treatment is unnecessary because it merely restates that which the second element of the analysis already requires: evidence that non-minority employees were treated differently under the same or similar circumstances. As we noted in Hale v. Cuyahoga County Welfare Department, 891 F.2d 604, 606 (6th Cir.1989), “[t]he ‘causal connection’ step generally is met simply by showing that the position in question was awarded to a member of [an unprotected class].” Likewise, we recently stated, “Individual disparate treatment cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded otherwise similarly situated individuals who are not within the plaintiffs protected group.” Brown v. Brentwood Music, Inc., No. 97-5835, 1998 WL 415832, at *1 (6th Cir. June 16, 1998) (unpublished disposition). In Burdine, 450 U.S. at 253, 101 S.Ct. 1089, the Supreme Court observed that “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff’ and “[t]he burden of establishing a prima facie case of disparate treatment is not onerous.” The prima facie case merely serves to raise a rebuttable presumption of discrimination by “eliminating] the most common nondiscriminatory reasons for the [employer’s treatment of the plaintiff],” id. at 254, 101 S.Ct. 1089, and not to satisfy the plaintiffs ultimate burden of persuasion. Thus, we are satisfied that, in a disparate treatment case, any further inquiry" } ]

[ { "docid": "1670529", "title": "", "text": "who attempts to read the terms and conditions “will develop severe eye strain, perhaps terminal, long before reaching Paragraph 13.” Although the type-size used in printing the limitations clause is a consideration, it “is not the significant matter” because “there is both ample time and a powerful incentive to study the passage contract ticket promptly after a loss has occurred.” Kendall, 704 F.Supp. at 1016. Furthermore, there is no requirement that the time limitation clause must be the first clause of the contract terms to be legally enforceable, Marek, 817 F.2d at 247; the fact that the limitations clause appeared in paragraph 13 of plaintiffs ticket is not controlling. Giving substantial weight to the conspicuous warnings that there were terms and conditions that “affect important legal rights,” the limitations clause was presented to plaintiff in a “reasonably communicative” manner. Under the second prong of the analysis, extrinsic factors surrounding the purchase and subsequent retention of the Ticket should be examined. Shankles, 722 F.2d at 865. These factors include “the passenger’s familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside the ticket.” Id. The passenger’s lack of actual knowledge of the limitations clause does not render a limitations clause unenforceable. In Kendall, 704 F.Supp. at 1016 (quoting Barkin v. Norwegian Caribbean Lines, 1988 A.M.C. 645, 650 (D.Mass.1987)), the court stated: ‘It is misleading to focus on whether [plaintiffs] actually read the contract; rather the proper focus is on whether [they] had the opportunity to read it.’ Since plaintiffs admittedly possessed the cruise ticket for the full year following the accident, they had more than sufficient opportunity to familiarize themselves with the ticket’s contents. Furthermore, plaintiff had a contractual duty to apprise herself of the cruise ticket’s express terms. Id. at 1016. “The passenger who omits to read takes the risk of the omission.” Marek, 817 F.2d at 247 (citation omitted). The fact that a ticket may have been in the possession of a friend or spouse is irrelevant so long as the plaintiff" } ]

[ { "docid": "18736960", "title": "", "text": "861 (1st Cir.1983); DeNicola v. Cunará Line Ltd., 642 F.2d 6 (1st Cir.1981). See also, Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983); Silvestri v. Italia Societa Per Azioni di Navigazione, 388 F.2d 11 (2nd Cir.1968); Lipton v. National Hellenic American Lines, 294 F.Supp. 308 (E.D.N.Y.1968). Consideration must be given as to “whether the company has ‘done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights’.” Shankles, 722 F.2d at 864 (citing Silvestri, 388 F.2d at 17). In applying the test, several factors are analyzed: examination of the ticket itself, the circumstances surrounding the passenger’s purchase, the passenger’s possession of and familiarity with the ticket, and the passenger’s ability to become meaningfully informed of the terms of the contract of passage. Id. at 865-66. In the instant case, the district court properly found that the terms and conditions contained in the master ticket jacket validly imposed a one year prescription period for commencing death or personal injury action. Prince does not contest the finding that plaintiff never received the ticket jacket. Prince contends, however, that plaintiff should be imputed with knowledge of the contractual limitation period through her agent, the Peter Pan Tours guide, because he had picked up her ticket and had handled the ticketing procedures. Prince relies on cases that have held that where a party picks up or accepts a ticket on behalf of another, the party accepting the ticket is found to be the other’s agent and therefore chargeable with notice of the terms on the ticket. Prince principally relies on two cases: DeCarlo v. Italian Line, 416 F.Supp. 1136 (S.D.N.Y.1976) and Ciliberto v. Carnival Cruise Lines, Inc., 1986 AMC 2317 (E.D.Pa.1986) [available on WEST-LAW, 1986 WL 2560]. Prince’s reliance on DeCarlo and Ciliber-to is misplaced. In DeCarlo, plaintiff’s travel arrangements were made by plaintiff’s friend who made the reservations, delivered plaintiff’s check to defendant and picked up the tickets. On the cruise ship, plaintiff’s friend died unexpectedly. Plaintiff’s friend both prior and during the voyage had possession of their individual" }, { "docid": "15894220", "title": "", "text": "circuit’s decisions); Lieb v. Royal Caribbean Cruise Line, Inc., 645 F.Supp. 232, 234 (S.D.N.Y.1986). The district court below also applied the two-part test, finding that it could be “harmonized” with the test applied by the Second Circuit. We believe the two-part test to be useful in analyzing the reasonably communicated standard and to be a satisfactory refinement of Judge Friendly’s holding in Silvestri, and therefore, take this opportunity to expressly adopt it. Applying the test’s second part to the facts of this case, we must decide whether a carrier gives reasonable notice of contractual limitations when it issues a ticket bearing the terms of the limitations to the passenger just minutes before she boards the ship and then collects the entire ticket at boarding, thereby leaving her with no written notice of the terms or even that such terms exist. As the district court below noted, in the majority of cases in which a time limitation contained on a passenger ticket has been upheld, the court’s decision rested in part on the fact that the passenger or the passenger’s agent received the ticket several days in advance of the trip and was allowed to retain the ticket (or at least that portion of the ticket containing the contract terms and conditions) either permanently or for a substantial period of time after boarding the ship. See, e.g., Dillon, 960 F.2d at 744-45 (upholding limitation where plaintiff purchased ticket at least one week before trip and her attorney retained ticket after injury); Marek v. Marpan Two, Inc., 817 F.2d 242, 243-44 (3d Cir.1987) (upholding limitation where plaintiff received ticket just before boarding and one page of ticket collected upon boarding, but analyzing only portions of ticket retained by the passenger to determine reasonable communicativeness); Shankles, 722 F.2d at 866 (upholding limitation in part because plaintiff had ticket before boarding and retained it after the fire that caused her losses). In some cases it is unclear whether the passenger was allowed to retain the ticket, while in others the passenger specifically sought to avoid the terms because the ticket was collected upon boarding." }, { "docid": "7166522", "title": "", "text": "would survive but for time limitations. Courts have not hesitated to administer the reasonable communicativeness test to determine the validity of conditions apart from time limitations, conditions which could not be avoided by a post-accident reading. Hollander v. K-Lines Hellenic Cruises, S.A., 670 F.Supp. 563 (S.D.N.Y.1987) (foreign forum selection clause); Everett, supra (domestic forum selection clause); Wilkinson v. Carnival Cruise Lines, Inc., 645 F.Supp. 318 (S.D.Tex.1985) (same); Luby v. Carnival Cruise Lines, Inc., 1986 A.M.C. 2326 (D.Md.1985) (same) [available on WESTLAW, 1985 WL 6420]; Cada v. Costa Line, Inc., 547 F.Supp. 85 (N.D.Ill.1982) (limitation of liability for lost baggage). Courts have also enforced time limitation clauses where passengers had surrendered their tickets on boarding and, therefore, could not avail themselves of a post-accident reading. See, e.g., Geller v. Holland-American Line, 298 F.2d 618, 619 (2d Cir.); cert. denied, 370 U.S. 909, 82 S.Ct. 1256, 8 L.Ed.2d 403, (1962); McQuillan v. “Italia” Societa Per Azione Di Navigazione, 386 F.Supp. 462, 464 (S.D.N.Y.1974), aff'd, 516 F.2d 896 (2d Cir.1975); Murray v. Cunard S.S. Co., 235 N.Y. 162, 166-67, 139 N.E. 226 (N.Y.1923) (Cardozo, J.). The essential inquiry remains whether the ticket reasonably communicated to the passenger the conditions of the contract of passage before the passenger boarded the vessel. Appellees further argued that they did not receive their tickets until immediately before boarding the ship and, therefore, they had no effective opportunity to read the conditions of contract. Prior to the appellees boarding the Achille Lauro, the tickets had been held by Club ABC, the appellees’ travel agent. In Marek, we found that a friend’s “possession of the folder is sufficient to charge [plaintiff] with notice of its provisions.” 817 F.2d at 247. This conclusion followed precedent in which possession by kith or kin of the plaintiff charged plaintiff with notice. Foster v. Cunard White Star, Ltd., 121 F.2d 12, 13 (2d Cir.1941) (brother); Rogers v. Furness, Withy & Co., 103 F.Supp. 314, 316-17 (W.D.N.Y.1951) (friend). The underlying question is whether someone has “acted in the capacity of an agent in acquiring the ticket for the plaintiff.” DeCarlo v. Italian Line, 416" }, { "docid": "4414919", "title": "", "text": "Italian Line, 416 F.Supp. 1136, 1137 (S.D.N.Y.1976). In such cases, the passenger is charged with notice of the contractual provision. In the second type of ease, a tour group leader arranges for multiple reservations and the carrier issues one master ticket to the tour group leader. In such a case, the carrier must give reasonable notice in whatever materials are issued to each passenger that they should examine the terms of the contract of passage or, at a minimum, clearly directing them to documents setting forth these terms. E.g., Muratore v. M/S Scotia Prince, 845 F.2d 347, 352 (1st Cir.1988); Barbachym v. Costa Line, 713 F.2d 216, 220 (6th Cir.1983). In this line of cases, consideration is given to whether the company has done all it reasonably could to warn the passenger that the terms were important. Muratore, 845 F.2d at 351. Plaintiff’s situation is more closely analogous to the first type of case. Plaintiff’s passage was not secured by means of a group ticket; rather, an individual ticket was issued in Plaintiff’s name. While Plaintiff claims no knowledge of who had her ticket contract, the cruise was arranged as a part of her employment, and clearly someone at Canyon Ranch handled the arrangements for her. Plaintiff’s limited knowledge of the circumstances surrounding her trip indicate that she left the details to someone else at Canyon Ranch. Thus, even if another person acting as Plaintiff’s agent handled her ticket exclusively, Plaintiff is still charged with knowledge of its contents. Since Plaintiff did not initiate her suit within one year of her injury, summary judgment dismissing the Complaint as to the Owner is granted. 4. Disclosed Principal Plaintiff concedes that “the passenger ticket contract ... does make clear that the owner of the vessel is Sun Line Greece Special Shipping Co.” PI. Mem. in Opp. at 2. However, Plaintiff argues that, since she never received the ticket, the principal of Sun Line Agency was not disclosed to her. Id. As stated above, however, Plaintiff is charged with knowledge of the contents of the ticket contract. The ticket’s cover clearly identifies Sun" }, { "docid": "23256464", "title": "", "text": "Does the contract reasonably communicate to the passenger the existence therein of important terms and conditions which affect legal rights? [citations omitted]. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-64 (1st Cir.1983). The Second, Fifth, and Sixth Circuits have also adopted this “reasonable communicativeness” test to determine when the passenger of a common carrier is contractually bound by the fine print of a passenger ticket. See, e.g., Barbachym v. Costa Line, Inc., 713 F.2d 216, 219 (6th Cir.1983) (referring to test as “reasonable notice\" standard); Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 12-13 (5th Cir.1979); Silvestri v. Italia Societa Per Azione di Navigazione, 388 F.2d 11, 14-17 (2d Cir.1968) (the Second Circuit was the first circuit to adopt the rule, in an opinion written by Judge Friendly). The “reasonableness” of notice under this test is a question of law to be determined by the court. Shankles, 722 F.2d at 867. To determine “reasonable communicativeness,” the First Circuit in Shankles employed a two-pronged analysis. First, it recognized that, under what it entitled the “Physical Characteristics of the Ticket/Contraet,” “[features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question, are all called into question by reviewing courts in their assessment of a ticket’s ‘reasonable communicativeness.’ ” 722 F.2d at 864. Second, the court stated that “the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract may be of equal importance as the prominence of warnings and clarity of conditions in deciding whether a provision should be held to bind a particular passenger.” Id. at 865. The surrounding circumstances to be considered include the passenger’s familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside of the ticket. Id. at 866. Therefore, the Shankles court concluded that the “proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket" }, { "docid": "18736963", "title": "", "text": "ticket); Rogers v. Furness, Withy &, Co., 103 F.Supp. 314 (W.D.N.Y.1951) (plaintiff was bound by the contractual limitation period when her traveling companion purchased their individual tickets). This case, however, much more resembles Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983). In Barbachym, two plaintiffs were traveling on a cruise ship as part of a tour group. The two passengers received a boarding pass which contained language stating that conditions of passage were pursuant to the ticket held by the group leader. The Sixth Circuit held that the carrier failed to give reasonable notice of the contractual limitation provision because the physical characteristics of the group ticket were inadequate. The court also stated that even if a passenger could determine from the boarding pass that there were some important terms and conditions concerning the voyage, “the passenger naturally would assume that only the ‘Group Leader’ had access to the material containing those terms.” Id. at 220. De Carlo and Ciliberto stand for the proposition that when a passenger gives the authority to another — at least where such other is a relative, friend, personal companion, or the like — to acquire and to hold her individual passenger ticket and where the contract of passage on the individual ticket is conspicuously stated and valid, the court will rightly charge a passenger with notice of the contractual provisions. This is necessary to avoid passengers who delegate their responsibilities to another in handling their individual tickets to bypass valid limitation provisions. Ciliberto, 1986 AMC at 2321. On the other hand, in. situations where, like here, a tour group makes arrangements for multiple reservations and the carrier issues one master ticket to the tour group leader, the carrier must give reasonable notice in the materials issued to each passenger that they should examine the terms of the contract of passage or, at minimum, clearly direct passengers to documents that set forth such terms and conditions. Barbachym v. Costa Line, Inc., 713 F.2d 216. Although the warning printed on the master ticket T73643 was sufficiently clear on its own terms, plaintiff could not" }, { "docid": "15828942", "title": "", "text": "behalf of those passengers in his group. The issue thus becomes whether Plaintiff can be charged through her agent with receipt of the ticket and, therefore, knowledge of its terms. Plaintiff argues that she cannot be charged with knowledge of the contractual limitations because no language on any of the documents she actually received alerted her to any special conditions; thus, Plaintiff argues, Prince of Fundy did not do all it reasonably could do to warn Plaintiff of the terms and conditions affecting her legal rights. In support of her argument, Plaintiff relies on the First Circuit’s discussion in Shankles of Barbachym v. Costa Line, Inc., supra, 713 F.2d 216. The Court has reviewed these and other cases, and has determined that Plaintiff’s position is correct. In Shankles, a steamship passenger brought suit against the ship charterer to recover damages allegedly arising from property damage and personal injuries sustained as a result of a fire on board the ship. The First Circuit held that the provisions in the passenger ticket and passenger declaration form, together with the circumstances of the passenger’s possession of and familiarity with the ticket, reasonably communicated the existence of limitations periods for giving notice of the claim and commencing the lawsuit. In reaching its decision, the First Circuit discussed Barbachym as being “factually distinguishable.” Barbachym involved two plaintiff-passengers traveling as part of a tour group. The plaintiffs in that case received a boarding pass with language indicating that conditions of transportation were as per ticket held by the group leader. The Sixth Circuit found that the ocean carrier had not given reasonable notice of the one-year limitations period for bringing a death or personal injury suit. In reaching that conclusion, the court found inadequacies on the face of the ticket itself. The court also found, however, that “even if a passenger were to deduce from [the boarding pass] that there might be some additional terms governing the trip, the passenger naturally would assume that only the ‘Group Leader’ had access to the material containing those terms.” Barbachym, 713 F.2d at 220. The Sixth Circuit’s decision suggests" }, { "docid": "11809901", "title": "", "text": "not reasonably communicate the limitation so that a passenger can become meaningfully informed of its terms. In this circuit, we employ a two-pronged “reasonable communicativeness” test, adopted from Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1988), to determine under federal common law and maritime law when the passenger of a common carrier is contractually bound by the fine print of a passenger ticket. See Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1363 (9th Cir.1987) (applying First Circuit test for maritime cases to case involving air carrier); see also Dempsey v. Norwegian Cruise Line, 972 F.2d 998, 999 (9th Cir.1992) (bringing Deiro analysis back to maritime cases). “[T]he ‘proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 866). Whether the ticket provides reasonable notice is a question of law, which we review de novo. See Dempsey, 972 F.2d at 999. The first prong of the reasonable communicativeness test focuses on the physical characteristics of the ticket. Here we assess “ ‘[Qeatures such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 864). We believe the physical characteristics of the ticket in this case are such that the terms and conditions are sufficiently conspicuous to the passenger. The reference to the Athens Convention liability limitation is buried six sentences into paragraph 16 in extremely small (1/16 inch) type. However, paragraph 16 is legible, and it carries the heading: “16. LIMITATIONS ON CARRIER’S LIABILITY; INDEMNIFICATION.” The “IMPORTANT NOTICE” warning headline reminds the passenger at least five times to read “SECTIONS 15 THROUGH 18.” The pages upon which paragraph 16 is printed are marked with the words, “PASSAGE CONTRACT,” in the upper right hand" }, { "docid": "10432422", "title": "", "text": "maritime law). Moreover, federal law applies even though the suit arises from an accident that took place on shore. See Rams v. Royal Caribbean Cruise Lines, Inc., 17 F.3d 11, 12 (1st Cir.1994) (whether contract limitation applies to claim for injuries suffered on shore presents issue of maritime law); Berg v. Royal Caribbean Cruises, Ltd., 1992 WL 609803 *3 (D.N.J.1992) (same). See also Vavoules v. Kloster Cruise Ltd., 822 F.Supp. 979, 982 (E.D.N.Y.1993). Under federal maritime law, terms and conditions contained in a passenger ticket contract may be given effect if they are “reasonably communicated” to the passenger. The forum selection clause in this case clears this hurdle. The cover page of the ticket bears the legend “Passenger Ticket Contract” and provides the following notice: IMPORTANT NOTICE: The passenger’s attention is specifically directed to the terms and conditions of this contract appearing on pages 6, 7, 8, 9, and 10. These terms and conditions affect important legal rights and the passenger is advised to read them carefully. The forum selection clause appears in readable print on page 10 at paragraph 28. Similar provisions have passed the test of “reasonable communicativeness.” See Vavoules, 822 F.Supp. at 981. Plaintiffs state that they had no occasion to read the terms and conditions contained in the ticket and surrendered the ticket before embarking on the cruise. However, they had possession of the ticket for a period of time and are deemed to have notice of its terms. See Vavoules, 822 F.Supp. at 981, citing Marek v. Marpan Two, Inc., 817 F.2d 242, 247 (3d Cir.), cert. denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987). Whether the forum selection clause should be enforced is governed by the Supreme Court’s decision in Carnival Cruise Lines. In that case, residents of the State of Washington sued a cruise ship line in the Western District of Washington to recover for injuries sustained on a cruise off the coast of Mexico. The Supreme Court held that a provision in the passenger ticket requiring all suits to be filed in Florida was valid and enforceable. The Court" }, { "docid": "11809902", "title": "", "text": "question of law, which we review de novo. See Dempsey, 972 F.2d at 999. The first prong of the reasonable communicativeness test focuses on the physical characteristics of the ticket. Here we assess “ ‘[Qeatures such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 864). We believe the physical characteristics of the ticket in this case are such that the terms and conditions are sufficiently conspicuous to the passenger. The reference to the Athens Convention liability limitation is buried six sentences into paragraph 16 in extremely small (1/16 inch) type. However, paragraph 16 is legible, and it carries the heading: “16. LIMITATIONS ON CARRIER’S LIABILITY; INDEMNIFICATION.” The “IMPORTANT NOTICE” warning headline reminds the passenger at least five times to read “SECTIONS 15 THROUGH 18.” The pages upon which paragraph 16 is printed are marked with the words, “PASSAGE CONTRACT,” in the upper right hand corner. Other courts have consistently found tickets with similar physical features to have provided reasonable notice that contractual terms are contained therein. See, e.g., Effron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir.1995); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir.1990); Hodes, 858 F.2d 905; McQuillan v. “Italia” Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974). The second prong of the reasonable communicativeness test requires us to evaluate “ ‘the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 865). “The surrounding circumstances to be considered include the passenger’s familiarity with the ticket, the time and incentive wider the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside of the ticket.” Id. (emphasis added). This prong allows us to examine more subjective, “ ‘extrinsic factors indicating the passenger’s ability to become meaningfully informed.’ ” Id. (quoting Shankles, 722 F.2d at 866) (emphasis added). We believe the liability limitation at" }, { "docid": "9340192", "title": "", "text": "reader may be inclined initially to read from line three to line four without pausing, producing the statement that pages one, two and three of the contract are nontransferable, rather than the intended statement that the ticketholder should read all terms of the contract contained on pages one through three. We fail to see, however, how the imperfections in the notice were in any way misleading. The entire contract is contained on the three numbered pages, and so no matter how one reads the notice, the message is the same: the ticketholder should read all terms contained in the contract, and the contract is nontransferable. This understanding is confirmed quickly and easily by reference to the following pages, which begin with the heading “Contract for Carriage,” and are clearly marked as Pages 1, 2, and 3. Moreover, the important reference points all are highlighted either by use of large type or reverse printing. That the notice could have been clearer does not mean that the ticket was insufficiently communicative. Although a steamship company should strive to be as comprehensible as possible in alerting passengers to contractually imposed limitations on legal rights, the standard is one of reasonableness, not perfection. See Marek v. Margan Two, Inc., 817 F.2d 242, 245 (3d Cir.1987). We therefore find no error in the district court’s implicit conclusion that defendant did not fail the test of “reasonable communicativeness” on prong one. 3. Prong Two: Extrinsic Circumstances. Because the crucial issue in determining whether it is fair to enforce a shortened filing deadline is the passenger’s ability to become “meaningfully informed” of such a requirement, factors other than the clarity of the ticket can be significant. Shankles, 722 F.2d at 865 (extrinsic circumstances “may be of equal importance as the prominence of warnings and clarity of conditions”). In this case, the district court evidently believed that plaintiff had ample opportunity to learn about the limitations period even if she had failed to read the ticket booklet before discarding it. The court emphasized plaintiffs representation by three attorneys, the first of whom sought a settlement offer from defendant" }, { "docid": "23256465", "title": "", "text": "Characteristics of the Ticket/Contraet,” “[features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question, are all called into question by reviewing courts in their assessment of a ticket’s ‘reasonable communicativeness.’ ” 722 F.2d at 864. Second, the court stated that “the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract may be of equal importance as the prominence of warnings and clarity of conditions in deciding whether a provision should be held to bind a particular passenger.” Id. at 865. The surrounding circumstances to be considered include the passenger’s familiarity with the ticket, the time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside of the ticket. Id. at 866. Therefore, the Shankles court concluded that the “proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake.” 722 F.2d at 866. As in Shankles, if the only consideration in the instant case were the physical characteristics of the ticket, this would be a close case. The instant case falls between those cases in which notice on the face of the ticket is virtually nonexistent, see Shankles, 722 F.2d at 865, and those in which the notice is clear and conspicuous. See id. Even relative to the small size of the face of the ticket, the type size of the message “SUBJECT TO CONDITIONS CONTAINED IN THIS TICKET” is tiny and not apparently highlighted by a different colored background. It is doubtful that this line alone could constitute an effort by the airline to provide a “clear” and “conspicuous” notice to its passengers that important conditions of carriage are listed inside the ticket coupon. On the other hand, the warning is at the top of the ticket in the far-left corner. The" }, { "docid": "15894217", "title": "", "text": "Friendly’s seminal opinion in Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11, 17 (2d Cir.1968), in which he found, based on his review of the case law, that a contractual limitation would not be enforceable unless the carrier satisfied its burden of showing that it “had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights.” Most circuits, including ours, have since construed Silvestri as requiring that “sea carriers reasonably communicate any limitations period to their passengers.” Spataro, 894 F.2d at 46. In applying this standard, several circuits have adopted a two-part test: (1) whether the physical characteristics of the ticket itself “reasonably communicate[d] to the passenger the existence therein of important terms and conditions” that affected the passenger’s legal rights, and (2) whether “the circumstances surrounding the passenger’s purchase and subsequent retention of the tickeVcontract” permitted the passenger “to become meaningfully informed of the contractual terms at stake.” Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864-66 (1st Cir.1983); see also Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 744-45 (8th Cir.1992). As the court in Shankles noted, given the likelihood that a passenger will not read the fine print upon purchase or during a pleasure cruise, the surrounding circumstances examined in the second part of the test “may be of equal importance as the prominence of warnings and clarity of conditions [examined in the first part] in deciding whether a provision should be held to bind a particular passenger,” since “the same passenger might very well be expected to consult the multifarious terms and conditions of the ticket/contract in the event of an accident resulting in a loss or injury.” 722 F.2d at 865. The Second Circuit has never discussed, much less adopted, the two-part test, perhaps because the second part has never been at issue. See, e.g., Effron, 67 F.3d at 8 (noting that plaintiff purchased ticket one month before cruise); Spataro, 894 F.2d at 46 (omitting discussion of when plaintiff received ticket or whether plaintiff retained possession, but language of" }, { "docid": "11809900", "title": "", "text": "of no effect. 46 App.U.S.C. § 183c(a) (emphasis added). The parties do not dispute that the Grand Princess voyage upon which plaintiff and her husband sailed did not touch a United States port. Thus, the terms of § 183c(a) plainly do not apply to the Passage Contract of plaintiffs cruise. Further, the legislative history cited by plaintiff suggests a congressional intent, consistent with the text, to regulate all foreign carriers within the waters of the United States, but not to regulate foreign vessels in foreign waters. See Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 915 (3d Cir.1988) (“Congress, in Sections 183b and 183c, delimited the reach of American public policy to contracts of passage for voyages that touch the United States; we refuse to supplement that Congressional choice with judicial embellishment.”), overruled on other grounds by Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989); Mills v. Renaissance Cruises, Inc., 1992 WL 471301 (N.D.Cal. Aug. 17, 1992) (same). Plaintiff next argues that the Passage Contract does not reasonably communicate the limitation so that a passenger can become meaningfully informed of its terms. In this circuit, we employ a two-pronged “reasonable communicativeness” test, adopted from Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1988), to determine under federal common law and maritime law when the passenger of a common carrier is contractually bound by the fine print of a passenger ticket. See Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1363 (9th Cir.1987) (applying First Circuit test for maritime cases to case involving air carrier); see also Dempsey v. Norwegian Cruise Line, 972 F.2d 998, 999 (9th Cir.1992) (bringing Deiro analysis back to maritime cases). “[T]he ‘proper test of reasonable notice is an analysis of the overall circumstances on a case-by-case basis, with an examination not only of the ticket itself, but also of any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 866). Whether the ticket provides reasonable notice is a" }, { "docid": "23256463", "title": "", "text": "a steamship passenger, but which is equally applicable to passengers of air carriers. The First Circuit stated: Beginning almost a century ago with the case of The Majestic, 166 U.S. 375 [17 S.Ct. 597, 41 L.Ed. 1039] (1897), courts have struggled to divine standards by which to determine whether steamship passengers are to be held bound by “boilerplate” conditions located in the fine print of adhesion contracts of passage. Although some discernible standards have begun to emerge in the past two decades, this is still largely a case-by-case determination. Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger in another case. The basic inquiry is whether, and to what extent, a passenger, who in almost all cases does not actually bargain for a particular term or condition of a contract of passage, but who nevertheless accepts or signs the ticket before embarkation, is bound by the fine print of the ticket. Recent cases reflect that courts examine the entire ticket to answer the question: Does the contract reasonably communicate to the passenger the existence therein of important terms and conditions which affect legal rights? [citations omitted]. Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-64 (1st Cir.1983). The Second, Fifth, and Sixth Circuits have also adopted this “reasonable communicativeness” test to determine when the passenger of a common carrier is contractually bound by the fine print of a passenger ticket. See, e.g., Barbachym v. Costa Line, Inc., 713 F.2d 216, 219 (6th Cir.1983) (referring to test as “reasonable notice\" standard); Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 12-13 (5th Cir.1979); Silvestri v. Italia Societa Per Azione di Navigazione, 388 F.2d 11, 14-17 (2d Cir.1968) (the Second Circuit was the first circuit to adopt the rule, in an opinion written by Judge Friendly). The “reasonableness” of notice under this test is a question of law to be determined by the court. Shankles, 722 F.2d at 867. To determine “reasonable communicativeness,” the First Circuit in Shankles employed a two-pronged analysis. First, it recognized that, under what it entitled the “Physical" }, { "docid": "18736962", "title": "", "text": "tickets. At no time did plaintiff see her ticket or know of the contractual limitation provision in the ticket. The court concluded that plaintiff’s action was time barred. Similarly, in Ciliberto, 1986 AMC 2317, the district court found that plaintiff was bound by the one-year limitation provision when her traveling companion made the arrangements and received her ticket on her behalf. The court rejected plaintiff’s arguments that defendant and her traveling companion had deprived her of the opportunity to see her ticket because she had chosen to forego the opportunity to examine the contract of passage by allowing her agent to pick up and to keep possession of her ticket. Id. at 2320-21. See also Berry v. Holland American Line, 1975 A.M.C. 325 (N.Y.Civ.Ct.1975) (plaintiff was imputed with knowledge of the contractual limitation period when her husband, acting as the agent for his family, purchased one ticket for his immediate family); Horvath v. Cunard Steamship Co., 103 F.Supp. 356 (E.D.N.Y.1952) (plaintiff who could not read English was bound by the contractual limitation period in her ticket); Rogers v. Furness, Withy &, Co., 103 F.Supp. 314 (W.D.N.Y.1951) (plaintiff was bound by the contractual limitation period when her traveling companion purchased their individual tickets). This case, however, much more resembles Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983). In Barbachym, two plaintiffs were traveling on a cruise ship as part of a tour group. The two passengers received a boarding pass which contained language stating that conditions of passage were pursuant to the ticket held by the group leader. The Sixth Circuit held that the carrier failed to give reasonable notice of the contractual limitation provision because the physical characteristics of the group ticket were inadequate. The court also stated that even if a passenger could determine from the boarding pass that there were some important terms and conditions concerning the voyage, “the passenger naturally would assume that only the ‘Group Leader’ had access to the material containing those terms.” Id. at 220. De Carlo and Ciliberto stand for the proposition that when a passenger gives the authority to another" }, { "docid": "9340186", "title": "", "text": "Cunard Line Ltd., 642 F.2d 5, 7-9 (1st Cir.1981). This precedent is designed to give passengers a fair chance to learn about conditions affecting their legal rights that otherwise might be buried within “the fine print of adhesion contracts of passage,” Shankles, 722 F.2d at 864. The specific inquiry into whether a steamship company has met the standard of “reasonable communicativeness” is two-pronged. Shankles, 722 F.2d at 865. First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable. The second prong focuses on “the circumstances of the passenger’s possession of and familiarity with the ticket,” id., which involves scrutiny of “any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake,” id. at 866. Given this two-step analysis, it is obvious that the determination of enforceability must be made on a case-by-case basis. “Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger in another case.” Id. at 864. See also Muratore, 845 F.2d at 851; Barbachym v. Costa Line, Inc., 713 F.2d 216, 220 (6th Cir.1983). The “reasonable communicativeness” of a particular ticket in particular circumstances is a question of law and, barring a genuine dispute of material fact, the determination is appropriate for resolution at the summary judgment stage of a case. Shankles, 722 F.2d at 867; DeNicola, 642 F.2d at 11. See also Nash v. Kloster Cruise A/S, 901 F.2d 1565, 1567 (11th Cir.1990); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44, 45 (2d Cir.1990) (per curiam); Barbachym, 713 F.2d at 218; Carpenter v. Klosters Rederi, 604 F.2d 11, 13 (5th Cir.1979). B. Application of the Principles 1. Factual dispute. Plaintiffs initial argument on appeal is that the district court never should have reached the two-pronged reasonableness inquiry because, to get there, it improperly resolved a preliminary factual dispute about whether she received the portion of the ticket containing the time bar language. In an affidavit, plaintiff stated that she recognized her signature on the" }, { "docid": "18736959", "title": "", "text": "since the two photographers were considered part of Prince’s crew and Prince had a pecuniary interest in the photographic concession. The lower court determined that the photographers’ conduct was outrageous and that therefore plaintiff was entitled to recover $5,000.00 for intentional infliction of emotional distress. The trial court awarded plaintiff $25,000 in punitive damages on the grounds that Prince as a carrier had breached its duty to its passengers, that the photographers’ conduct was intentional and deliberate, that Prince failed to discipline the photographers, and that an award was needed to deter future improper conduct. Prince and not Trans-world appeals these findings. The district court returned a judgment for Prince and Transworld on plaintiff’s claim for personal injuries and for negligent infliction of emotional distress. These holdings are not on appeal. II. CONTRACTUAL LIMITATION In determining whether a contractual limitation period contained in a passen ger ticket is binding on a steamship passenger, this Circuit has applied the “reasonable communicativeness” test on a case by case basis. See Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1983); DeNicola v. Cunará Line Ltd., 642 F.2d 6 (1st Cir.1981). See also, Barbachym v. Costa Line, Inc., 713 F.2d 216 (6th Cir.1983); Silvestri v. Italia Societa Per Azioni di Navigazione, 388 F.2d 11 (2nd Cir.1968); Lipton v. National Hellenic American Lines, 294 F.Supp. 308 (E.D.N.Y.1968). Consideration must be given as to “whether the company has ‘done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights’.” Shankles, 722 F.2d at 864 (citing Silvestri, 388 F.2d at 17). In applying the test, several factors are analyzed: examination of the ticket itself, the circumstances surrounding the passenger’s purchase, the passenger’s possession of and familiarity with the ticket, and the passenger’s ability to become meaningfully informed of the terms of the contract of passage. Id. at 865-66. In the instant case, the district court properly found that the terms and conditions contained in the master ticket jacket validly imposed a one year prescription period for commencing death or personal injury action. Prince does" }, { "docid": "9340185", "title": "", "text": "COFFIN, Senior Circuit Judge. Plaintiff Mary Lousararian injured her foot and leg while reboarding defendant’s cruise ship during a vacation in December 1988. Fourteen months later, she filed this negligence action, despite a provision in her ticket imposing a one-year limitation on the filing of personal injury suits. The district court found as a matter of law that the limitations period was enforceable against plaintiff, and it accordingly granted summary judgment for defendant. On appeal, plaintiff claims that the district court improperly resolved factual issues concerning the enforceability of the time bar provision. We affirm. Discussion A. Legal Principles Although a cruise ship operator is permitted by statute to set a shortened limitations period for claims against it, see 46 U.S.C.App. § lSSbfa), a body of caselaw has developed barring enforceability of such a provision unless the steamship company has made a “reasonable” effort to warn passengers of the restriction. See Muratore v. M/S Scotia Prince, 845 F.2d 347, 350-51 (1st Cir.1988); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 863-64 (1st Cir.1983); DeNicola v. Cunard Line Ltd., 642 F.2d 5, 7-9 (1st Cir.1981). This precedent is designed to give passengers a fair chance to learn about conditions affecting their legal rights that otherwise might be buried within “the fine print of adhesion contracts of passage,” Shankles, 722 F.2d at 864. The specific inquiry into whether a steamship company has met the standard of “reasonable communicativeness” is two-pronged. Shankles, 722 F.2d at 865. First, a court must examine the facial clarity of the ticket contract and whether its language and appearance make the relevant provisions sufficiently obvious and understandable. The second prong focuses on “the circumstances of the passenger’s possession of and familiarity with the ticket,” id., which involves scrutiny of “any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at stake,” id. at 866. Given this two-step analysis, it is obvious that the determination of enforceability must be made on a case-by-case basis. “Differing circumstances may render the same ticket binding on one passenger in one case, yet invalid as against another passenger" }, { "docid": "11809903", "title": "", "text": "corner. Other courts have consistently found tickets with similar physical features to have provided reasonable notice that contractual terms are contained therein. See, e.g., Effron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir.1995); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir.1990); Hodes, 858 F.2d 905; McQuillan v. “Italia” Societa Per Azione Di Navigazione, 386 F.Supp. 462 (S.D.N.Y.1974). The second prong of the reasonable communicativeness test requires us to evaluate “ ‘the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract.’ ” Deiro, 816 F.2d at 1364 (quoting Shankles, 722 F.2d at 865). “The surrounding circumstances to be considered include the passenger’s familiarity with the ticket, the time and incentive wider the circumstances to study the provisions of the ticket, and any other notice that the passenger received outside of the ticket.” Id. (emphasis added). This prong allows us to examine more subjective, “ ‘extrinsic factors indicating the passenger’s ability to become meaningfully informed.’ ” Id. (quoting Shankles, 722 F.2d at 866) (emphasis added). We believe the liability limitation at issue fails this second prong. It is undisputed that paragraph 16 itself does not specify a limitation to Princess’ liability; the paragraph only references the “liability limitations ... applicable to [Princess] under the ‘Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1976.’ ” It is also unclear from paragraph 16 whether the liability limitations applicable under the Athens Convention would necessarily apply, as the above incorporation is followed by the language, “If the Athens Convention or such exemptions are held not to apply for any reason, then all the exemptions from and limitations of liability provided in or authorized by the laws of the United States (including Title 46 U.S. Code Sections 181-186, 188) will apply.” (Emphasis added.) A passenger wishing to inform herself of the nature of the possible liability limitation in paragraph 16 is likely to look up the “Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea,” which was signed in 1974. The passenger would have to understand that paragraph 16, which specifies" } ]

[ { "docid": "15135783", "title": "", "text": "possible relief in the bankruptcy court. At first glance, A & B might be thought to have had an unliquidated, contingent, unmatured and disputed claim pre-petition. While all of these adjectives may describe A & B’s cause of action against the Fren-villes, the threshold requirement of a claim must first be met — there must be a “right to payment.” § 101(4)(A). One court noted that “although the code definition of claim has been drafted in extremely broad terms, such definition may not confer the status of a claimant upon a petitioning creditor who has no right to payment.” In re First Energy Leasing Corp., 38 B.R. 577, 581 (Bankr.E.D.N.Y.1984); see also In re McMeekin, 16 B.R. 805, 808 (Bankr.D.Mass.1982). Thus we must determine at what point A & B had a “right to payment” for its claim for indemnification or contribution. Of course, if A & B is found liable to the banks, it would have a right to payment from the Frenvilles (assuming liability for the moment), albeit a disputed and unliqui-dated one. The crucial issue, however, is when did A & B’s right to payment arise, for the automatic stay provision applies only to claims that arise pre-petition. See In re Thomas, 12 B.R. 432, 433 (Bankr.S.D.Iowa 1981) (“The existence of a ‘claim’ turns on when it arose.”). The present case is different from one involving an indemnity or surety contract. When parties agree in advance that one party will indemnify the other party in the event of a certain occurrence, there exists a right to payment, albeit contingent, upon the signing of the agreement. See In re THC Financial Corp., 686 F.2d 799, 802-04 (9th Cir.1982); In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir. (Unit A) 1981) (per curiam). Such a surety-relationship is the classic case of a contingent right to payment under the Code — the right to payment exists as of the signing of the agreement, but it is dependent on the occurrence of a future event. See All Media, 5 B.R. at 133. A" } ]

[ { "docid": "1121485", "title": "", "text": "sale of the defective goods by Johns-Manville to the creditors, which occurred prepetition. Id. Significantly, the Johns-Manville court was concerned with the policy of basing timing of claims on factors other than the debtor’s conduct. “Procedural and extraneous factors such as the timing of the filing of a summons and complaint by a third party, which is not associated with the underlying nature of the cause of action ... simply should not determine the existence or nonexistence of a ‘claim’.” Id. The bankruptcy court in In re A.H. Robins Co., 63 B.R. 986 (Bankr.E.D.Va.1986), reached a similar conclusion. There, a Dai-kon Shield claimant sought a declaration that her claim against the debtor manufacturer was postpetition and thus not subject to the automatic stay. The claimant had been inserted with the shield prepetition, but perceived no injury until postpetition. In analyzing when the bankruptcy claim arose, the A.H. Robins court rejected the reasoning in Frenville and found the definition of claim articulated in Edge broader than necessary to give effect to Bankruptcy Code goals. Id. at 993. The court then adopted the theory in Johns-Manville, that a “right to payment”, and therefore a claim, arises at the time when the acts giving rise to the alleged liability were performed. Id. The A.H. Robins court held the right to payment arose at the time the shield was inserted. Id. One bankruptcy court has applied the reasoning of Johns-Manville and A.H. Robins to environmental claims. In In re Chateaugay Corp. (\"LTV\"), 112 B.R. 513 (Bankr.S.D.N.Y.1990), the United States and New York State sought declaratory judgments regarding dischargeability of environmental claims in bankruptcy. The bankruptcy court examined the language of CERCLA, which requires as a predicate to liability “[a] ‘release’ or a ‘threatened release’ of a ‘hazardous substance’ ... at the site.” Id. at 518. The LTV court held so long as a prepetition triggering event has occurred, i.e. the release or threatened release of hazardous waste, the claim is dischargeable, regardless of when the claim for relief may be in all respects ripe for adjudication. Id. at 522. As the LTV court states," }, { "docid": "10222638", "title": "", "text": "action is commenced. The Second Circuit, however, has suggested in dicta possible disagreement with the Frenville decision: We are not as certain as the District Court that, if we reached the issue, we would follow Frenville and hold the stay inapplicable to Paine Webber’s third-party complaint. The broad definition of “claim” in the Bankruptcy Code, a “right to payment, whether or not such right is ... unliquidated ... contingent ... un-matured ...,” 11 U.S.C. § 101(4)(A), creates a substantial question whether the stay applies to the third-party complaint. In view of our disposition of this appeal, we do not decide that question. In re Baldwin-United Corporation Litigation, 765 F.2d 343, 348 n. 4 (2d Cir.1985). At least three cases subsequent to Fren-ville have identified the following flaws in the Third Circuit’s decision that contribution and indemnity claims be treated as post-petition claims: 1) Frenville mistakenly applied state law rather than federal bankruptcy law, to determine when creditors’ claims arose, counter to the Supreme Court holding in Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). In re Johns-Manville, 57 B.R. 680, 689 (Bankr.S.D.N.Y.1986); In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985). 2) Congress intended an extremely broad definition of “claim” for bankruptcy administration, which would include a subrogation claim, and the Supreme Court approved that congressional intent generally in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985). In re Johns-Manville, 57 B.R. 680, 687-88; Matter of Balwin-United Corp., 48 B.R. 901, 903 (Bankr.S.D.Ohio 1985) citing House Report No. 95-595, 95th Cong., 1st Sess. 309 (1977); and Senate Report No. 95-989, 95th Cong. 2d Sess. 21 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787; In re Yanks, 59 B.R. 56, 57 citing Ohio v. Kovacs. 3) Equality among creditors under bankruptcy law is frustrated if a surety by waiting to file suit for recovery against a debtor, could prejudice the rights of other creditors. In re Johns-Manville, 57 B.R. 680, 690; In re Yanks, 59 B.R. 56, 56 citing Williams v. U.S. Fidelity & Guaranty Co., 236" }, { "docid": "6460704", "title": "", "text": "upon “the time when the acts giving rise to the alleged liability were performed,” since only reference to prepetition acts of the debtor will result in treating liabilities flowing from such acts in an equitable fashion. In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986); see also In re Revere Copper and Brass, Inc., 29 B.R. 584, 588 (Bankr.S.D.N.Y.), aff'd, 32 B.R. 725 (S.D.N.Y.1983); In re A.H. Robins Co., 63 B.R. at 993; In re Edge, 60 B.R. 690, 699-705 (Bankr.M.D.Tenn.1986). Where the debtors’ obligations stem from contractual liability, even a post-petition breach will be treated as giving rise to a prepetition liability where the contract was executed prepetition. See 11 U.S.C. § 365(g)(1); NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984); see also In re Ahrens, 64 B.R. 5, 6-7 (Bankr.E.D.Pa.1986); In re William H. Herr, Inc., 61 B.R. 252, 253 (Bankr.E.D.Pa.1986). In In re Johns-Manville, 57 B.R. at 690, the bankruptcy court held that “for federal bankruptcy purposes, a prepetition ‘claim’ may well encompass a cause of action that, under state law, was not cognizable until after the bankruptcy petition was filed.” The court declined to follow the Third Circuit’s holding in Matter of M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed. 2d 925 (1985) that “the threshold question of when a right to payment arises, absent overriding federal law, ‘is to be determined by reference to state law.’ ” 744 F.2d at 337 (quoting Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946)). The Johns-Manville Court noted other bankruptcy courts’ criticism of the Fren-ville decision for its “reliance upon state law to determine if a claim existed against the debtors at the time that the bankruptcy cases were commenced,” In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985), and for failing “to distinguish between ‘claim’ as defined in 11 U.S.C. § 101(4) and a cause of action for indemnity or contribution under state law.” Matter of Baldwin-United Corp., 48 B.R. 901, 903" }, { "docid": "6460706", "title": "", "text": "(Bankr.S.D.Ohio 1985). The bankruptcy court also noted the Second Circuit’s statement in In re Baldwin-United Corp. Litig., 765 F.2d 343 (2d Cir.1985), that it has reservations about following Frenville: “We are not as certain as the District Court that, if we reached the issue, we would follow Fren-ville and hold the stay inapplicable to Paine-Webber’s third-party complaint. The broad definition of ‘claim’ in the Bankruptcy Code ... creates a substantial question whether the stay applies to the third-party complaint.” In re Baldwin-United Corp. Litig., 765 F.2d at 348 n. 4. Notwithstanding widespread bankruptcy court disapproval of Frenville, this and other district courts from this Circuit have held that the issue of when a claim arises cannot always be resolved solely with reference to the Code but sometimes requires an analysis of competing interests behind other federal laws. Thus, for example, in three recent cases our district courts have held that when the EPA’s claim for cost recovery and a joint tortfeasor’s claim for contribution under the Comprehensive Environmental Response, Compensation and Liability- Act of 1980 arise against a debtor in bankruptcy cannot be determined solely with reference to the broad definition of claim in section 101(4) of the Code but requires substantial consideration of the competing interests protected by federal environmental laws. See, e.g., American Telephone & Telegraph Co. v. Cha-teaugay Corp., 88 B.R. 581 (S.D.N.Y.1988); In re Combustion Equipment Assocs., Inc., 67 B.R. 709 (S.D.N.Y.1986); In re Johns-Manville Corp., 63 B.R. 600 (S.D.N.Y.1986). Indeed, the need for material consideration of ERISA provided part of the grounds for the withdrawal of the instant case from the bankruptcy court. See PBGC v. The LTV Corp., at 38 (material consideration of ERISA required to determine when PBGC’s claims arise). Therefore, in order to determine the status of the PBGC’s claims, this court must consider what acts gave rise to LTV’s pension liabilities, when they occurred, and, finally, whether any competing interests in ERISA require that such liabilities be treated as post-petition claims of the PBGC. Here, the events that gave rise to the PBGC’s claims and that mark them as prepetition were" }, { "docid": "13944910", "title": "", "text": "analyze the case sub judice using the \"functional definition”, it is evident that a similar result would have been achieved. . In Remington Rand, the Third Circuit distinguished its earlier opinion by stating that although \"[in] Frenville, ... we held that a third-party’s indemnity or contribution claim did not arise before the bankruptcy petition, because, under state law, third-parties do not possess any rights until the contracting parties first establish a primary obligation to pay, ... we acknowledged that in some cases, overriding federal policy would require us to consult federal law. Remington Rand, 836 F.2d at 830 (citing Fren-ville, 744 F.2d at 337). It should be noted that the Frenville decision has been subject to substantial criticism. See, e.g., In re Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986); In re A.H. Robins Co., Inc., 63 B.R. 986, 990 n. 13 (Bankr.E.D.Va. 1986); In re Edge, 60 B.R. 690, 699 (Bankr.M.D.Tenn.1986). In re Baldwin-United Corp., 48 B.R. 901, 903 (Bankr.S.D.Ohio 1985); In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985). . 11 U.S.C. § 503(b)(1)(A) (1988). . Frito-Lay relies on In re Unishops, Inc., 553 F.2d 305, 308 (2d Cir.1977) in arguing that its claims are entitled to an administrative priority. In Unishops, the Second Circuit stated as follows: It is settled law that a claim arising under an executory contract is entitled to priority \"if the trustee or debtor in possession elects to assume the contract or if he receives benefits under it.” Id. at 308 (quoting American Anthracite and Bituminous Coal Corp. v. Leonardo Arrivabene, S.A., 280 F.2d 119, 124 (2d Cir.1960); In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976)). However, the Unishops’ test is not controlling in the case sub judice, as this Court has previously determined that there is no exec-utory contract involved. {See, Discussion, Issue I, A & B, supra.) . \"It appears to be the rule in this Circuit that a debtor-in-possession under Chapter XI is not the same entity as the pre-bankruptcy company; but is a new entity with its own rights and duties, subject to the supervision of the Bankruptcy Court”" }, { "docid": "1254590", "title": "", "text": "cannot accept the government’s argument that any future environmental obligations are not dischargea-ble merely because a CERCLA cause of action fully arises only after a review has been made, a remedy chosen, and costs incurred. So long as there is a pre-petition triggering event, i.e., the release or threatened release of hazardous waste, the claim is dischargeable, regardless of when the claim for relief may be in all respects ripe for adjudication. Very frequently, only one part of a tort occurs pre-petition, with the injury occurring post-petition. Such claims are nonetheless dischargeable. See Grady, supra, 839 F.2d 201-03 (liability for injuries caused by Daikon Shield arose as “claim” at time that the device was inserted into claimant even though the injury may have manifested itself later); In re Johns-Manville Corp., 57 B.R. 680, 688 (Bankr.S.D.N.Y.1986) (claim for indemnification by contractor who installed defective building materials against manufacturer was a “claim” under Bankruptcy Code even though state court had not yet found contractors liable). Since the Court concludes that some environmental claims are dischargeable, the Court must also determine what type of claims fit within that category, or put another way, whether claims for injunctive relief based upon such pre-petition release or threatened release of hazardous waste are properly dischargeable. Discharge Of Claims For Injunctive Relief Under CERCLA and N.Y.Envtl. Conserv.Law § 27-1313, the responsible party may be required to remedy the hazardous situation, or the governmental entity may perform the removal or remedial action and then seek to recover those costs from the responsible parties. Since the Bankruptcy Code defines “claim” to include a “right to an equitable remedy for breach of performance if such breach also gives rise to a right to payment,” see 11 U.S.C. § 101(4)(B), the Court must decide whether EPA’s right to recover costs renders the injunctive remedies it may seek dischargeable claims within the meaning of that language. The EPA argues that this is not a right to payment but merely a discretionary option which is part of the scheme of enforcement. That argument is not persuasive. Even an optional right to payment is" }, { "docid": "1254589", "title": "", "text": "enjoined from suing the debtor. See Kane v. Johns-Manville Corp., 843 F.2d 636, 640 (2d Cir.1988). Leaving aside for the moment the issue of whether such claims could be properly discharged because the unknown possible claimants might not have received proper notice of the bankruptcy proceeding, even in Johns-Manville’s situation there was a pre-petition tortious event to which these indeterminate, and indeed indeterminable, claims could attach; i.e., the manufacture of an inherently dangerous product to which the possible future claimants had been exposed. In this case, it is undisputed that the mere presence of hazardous wastes is not even a constituent element of any tortious conduct, much less a tort in itself. It follows that a discharge in bankruptcy cannot properly rest upon the mere pre-petition existence of such hazardous waste. Where, however, there has been a pre-petition release or threatened release of hazardous waste, there does exist an event that would render any claims arising from that circumstance dischargeable pursuant to the broad definition of “claim” set forth in the Bankruptcy Code. The Court cannot accept the government’s argument that any future environmental obligations are not dischargea-ble merely because a CERCLA cause of action fully arises only after a review has been made, a remedy chosen, and costs incurred. So long as there is a pre-petition triggering event, i.e., the release or threatened release of hazardous waste, the claim is dischargeable, regardless of when the claim for relief may be in all respects ripe for adjudication. Very frequently, only one part of a tort occurs pre-petition, with the injury occurring post-petition. Such claims are nonetheless dischargeable. See Grady, supra, 839 F.2d 201-03 (liability for injuries caused by Daikon Shield arose as “claim” at time that the device was inserted into claimant even though the injury may have manifested itself later); In re Johns-Manville Corp., 57 B.R. 680, 688 (Bankr.S.D.N.Y.1986) (claim for indemnification by contractor who installed defective building materials against manufacturer was a “claim” under Bankruptcy Code even though state court had not yet found contractors liable). Since the Court concludes that some environmental claims are dischargeable, the Court" }, { "docid": "17445915", "title": "", "text": "the opinions of three physicians, including Dr. Incavo, stating that Warren was totally disabled. Though the Movants insist that their third-party actions against Agway based on Warren’s grave injury did not accrue under state law until after the Bar Date, they fail to realize that, in bankruptcy cases, state law does not determine when a claim arises. The United States Bankruptcy Court of the Southern District of New York in In re Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986), has stated that “a prepetition ‘claim’ may well encompass a cause of action that, under state law, was not cognizable until after the bankruptcy petition was filed.” Id. at 690; see In re Caldor, Inc., 240 B.R. 180, 191 (Bankr.S.D.N.Y.1999) (“A claim is ‘contingent’ when the debtor’s legal duty to pay it does not come into existence until triggered by the occurrence of a future event.”). Three tests are most often cited as governing claim accrual: the conduct test, the prepetition relationship test, and the fair contemplation test. The conduct test provides that a claim exists at “the time when the acts giving rise to the alleged liability were performed.” Johns-Manville, 57 B.R. at 690. However, many courts have taken the view that the conduct test may be overly broad, tending to include the claims of parties such as classes of future mass tort claimants who cannot know prepetition that they may have a claim in the future. See, e.g., In re Chateaugay Corp., 944 F.2d 997, 1004 (2d Cir.1991). The prepetition relationship test finds a claim when there is “contact, exposure, impact, or privity between the debtor’s prepetition conduct and the claimant.” In re Piper Aircraft Corp., 162 B.R. 619, 627 (Bankr.S.D.Fla.1994). The Piper court fashioned the test to apply to product liability claims for which the debtor would be directly liable. The requirement of contact or exposure is less relevant here as to the Movants’ claim against the Debtors for contribution and indemnity. A con-' tributor may be indirectly liable without contact or privity with the injured party. Hence, the Court will not apply the pre-petition relationship test. Rather, the" }, { "docid": "6568134", "title": "", "text": "the occurrence of the debtor’s conduct that ultimately gave rise to the subsequent cause of action. For example, this test was applied in the asbestos liability case of In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986), where the court held that plaintiffs’ claims “arose” at the time of asbestos exposure, and not the manifestation of their injuries. And, in Grady v. A.H. Robins Co., 839 F.2d 198, 203 (4th Cir.1988), a plaintiff who sued the debtor post-petition for an injury arising from the pre-petition insertion of an intrauterine contraceptive device was denied relief on the grounds that her claim arose, for bankruptcy purposes, when the device was inserted into her body, not when her legal claim actually accrued. The debtor’s conduct test would appear to allow for the possibility that a creditor’s claim is automatically discharged if the conduct giving rise to the claim occurred pre-petition, even if the creditor had no way of knowing of the claim at the time. However, even in these cases, courts applying the debtor’s conduct test left room for protection of individuals with future, unknown claims. In both cases, the debtors were well aware of the damage their products had caused by the time of the bankruptcy proceeding; thus, the debtors and the bankruptcy courts anticipated that future claims would arise from unknown individuals who had been exposed to the harmful product, but who would not become aware of their claims until after the reorganization. Accordingly, trust funds were created during reorganization in order to compensate these prospective injuries, and representatives were appointed to articulate the interests of the future claimants during the proceedings. See In re A.H. Robins, 88 B.R. 742, 743 (E.D.Va.1988), aff'd 880 F.2d 694 (4th Cir.1989); In re Johns-Manville Corp., 36 B.R. 743, 745-46 (Bankr.S.D.N.Y.1984). In applying the debtor’s conduct test to determine that plaintiffs’ claims were discharged in bankruptcy, the respective courts were not holding that the plaintiffs would be prevented from recovering at all. Rather, the claimants’ interests had already been represented in the bankruptcy proceedings through the creation of the trust funds and the appointment of" }, { "docid": "16682689", "title": "", "text": "Circuit held that a claim for contribution or indemnification arose under state law, not when the claimant provided pre-petition services to the debtor, but post-petition, when the claimant paid a judgment and accrued a right to seek payment. The court then concluded that state law controlled the determination of when the claim arose, id. at 337, refusing to find that the clear Congressional intent served by the breadth of the term “claim” in the Code should prevail over state law. See, In re Chateaugay Corp., 102 B.R. at 352. This Court again rejects the Frenville analysis “because it ignores congressional intent to define ‘claim’ broadly ... [and] [t]o that extent it distorts the underlying policies of the Code in equating a claim with a cause of action for indemnity or contribution under state law notwithstanding the clear pre-petition rooting of the right to payment being sought.” In re Johns-Manville, 57 B.R. at 690; see also, In re Chateaugay Corp., 102 B.R. at 352. In this case, the pension benefits were provided to and accrued by employees of LTV Steel for labor performed, for the most part, prior to the Filing Date. Consequently, any claims arising from LTV Steel’s obligation to pay into the pension fund plans are pre-petition debts. The PBGC held a contingent claim against LTV from the time that the pre-petition labor of LTV Steel’s employees caused the accrual of claims by them for pension benefits. PBGC v. LTV Corp., 875 F.2d at 1019; In re Chateaugay Corp., 87 B.R. at 797. A contingent claim has been described as one in which “the debtor’s legal duty to pay does not come into existence until triggered by the occurrence of a future event and such future occurrence was within the actual or presumed contemplation of the parties at the time the original relationship of the parties was created.” In re Chateaugay Corp., supra, at 520 (quoting In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981)); accord In re Crescenzi, 53 B.R. 374, 380 (Bankr.S.D.N.Y.1985), aff'd, 69 B.R. 64 (S.D.N.Y.1986). The PBGC’s" }, { "docid": "6460705", "title": "", "text": "of action that, under state law, was not cognizable until after the bankruptcy petition was filed.” The court declined to follow the Third Circuit’s holding in Matter of M. Frenville Co., 744 F.2d 332 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed. 2d 925 (1985) that “the threshold question of when a right to payment arises, absent overriding federal law, ‘is to be determined by reference to state law.’ ” 744 F.2d at 337 (quoting Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946)). The Johns-Manville Court noted other bankruptcy courts’ criticism of the Fren-ville decision for its “reliance upon state law to determine if a claim existed against the debtors at the time that the bankruptcy cases were commenced,” In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985), and for failing “to distinguish between ‘claim’ as defined in 11 U.S.C. § 101(4) and a cause of action for indemnity or contribution under state law.” Matter of Baldwin-United Corp., 48 B.R. 901, 903 (Bankr.S.D.Ohio 1985). The bankruptcy court also noted the Second Circuit’s statement in In re Baldwin-United Corp. Litig., 765 F.2d 343 (2d Cir.1985), that it has reservations about following Frenville: “We are not as certain as the District Court that, if we reached the issue, we would follow Fren-ville and hold the stay inapplicable to Paine-Webber’s third-party complaint. The broad definition of ‘claim’ in the Bankruptcy Code ... creates a substantial question whether the stay applies to the third-party complaint.” In re Baldwin-United Corp. Litig., 765 F.2d at 348 n. 4. Notwithstanding widespread bankruptcy court disapproval of Frenville, this and other district courts from this Circuit have held that the issue of when a claim arises cannot always be resolved solely with reference to the Code but sometimes requires an analysis of competing interests behind other federal laws. Thus, for example, in three recent cases our district courts have held that when the EPA’s claim for cost recovery and a joint tortfeasor’s claim for contribution under the Comprehensive Environmental Response, Compensation and Liability- Act of 1980" }, { "docid": "4690232", "title": "", "text": "learned of their right to indemnification. Hi-Lo Powered Scaffolding, Inc. v. Penn, 70 B.R. 606, 611 (Bankr.S.D.Ohio 1987). Outside the mass tort context, the majority rule is that a claim arises at the time when acts were performed against the injured party that gave rise to the alleged liability. See In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986) (asbestos panels delivered to and used by claimants pre-bankruptcy). The rule was properly applied in cases like Edge and Johns-Manville, where the wrongful acts against alleged victims clearly took place pre-petition albeit the damages and harms remained undiscovered until post petition. The indemnification cases illustrate the advantages in bankruptcy of a rule focusing on the debtor’s conduct. Such a rule is consistent and promotes equal treatment of similarly situated creditors. It also discourages manipulation of the timing of claims. By providing for the inclusion of remote and contingent obligations, more claims can be discharged. This broadened discharge furthers the Congressional bankruptcy policy of a fresh start. Thus, considerations of bankruptcy policy as well as authority support a rule based on the debtor’s conduct. See also, Insurance Co. of North America v. Forty-Eight Installation, Inc., 633 F.2d 1212, 1220-23 (6th Cir.1980), cert. denied 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). However, in indemnification cases as well as Edge-type situations, debtor’s conduct had to impact pre-petition directly or indirectly on some injured party, either claimant or indemnity claimant, before it was sufficient to generate a pre-petition claim. IV. Classification of Claims in the Mass Tort Context In recent years, an unprecedented volume of products liability litigation has caused a number of large manufacturers to file petitions for reorganization under Chapter 11. Grady v. A.H. Robins Co., Inc., 839 F.2d 198, 199 (4th Cir.1988) (“Robins”); In re Amatex Corp., 755 F.2d 1034, 1036 (3d Cir.1985); In re UNR Indus., Inc., 71 B.R. 467, 470 (N.D.Ill.1987); In re Johns-Manville Corp., 36 B.R. 743, 745-746 (Bankr.S.D.N.Y.1984), aff'd, 52 B.R. 940 (S.D.N.Y.1985). Except for Robins, the above manufacturers were all producers and suppliers of asbestos. Prior to their petitions for reorganization, all (including Robins)" }, { "docid": "9565007", "title": "", "text": "there was a “claim” or right of payment. 49 B.R. at 58 (emphasis added). See also, Roach v. Edge (In re Edge), 60 B.R. 690, 695-696 (Bkrtcy.M.D.Tenn.1986); In re Johns-Manville Corp., 57 B.R. 680, 689-690 (Bkrtcy.S.D.N.Y.1986). Finally, the movants assert that all the cases which have criticized Frenville are all cases in which the respective claimants had known of their claims against the debt- or prior to the filing of the bankruptcy. Such a characterization of the case law is inaccurate. In re A.H. Robbins Co., Inc., supra, involved a victim who was allegedly injured as a result of her wearing a Daikon Shield intrauterine device. The claimant there argued that her claim did not arise until the time she knew or should have known the cause of her injury. In rejecting that argument, the Court noted: To follow Frenville and apply state law would be to confuse a “right to payment” for federal bankruptcy purposes with the accrual of a cause of action for state law purposes. As the Edge court noted, “[t]he statute of limitations cases do not concern the same issues or the same principles [as those which arise under the Code and a determination of when a claim arises].” 63 B.R. at 992 (citation omitted). See also, In re Edge, supra, (claimant discovered alleged negligent dental treatment post-petition). This Court is unable to find any requirement in § 101(4) or elsewhere in the Bankruptcy Code, limiting claims to those which are known to the claimant prepeti tion. Rather such claimants are provided an alternative remedy under § 523. Section 523(a)(3) provides that an individual debtor’s discharge does not extend to debts which are not listed or scheduled in time to permit the timely filing of a proof of claim. Based on the foregoing, the Court concludes that movants’ claim against the debtor is a contingent or unmatured claim within the purview of § 101(4), which was not yet cognizable under state law at the date of the bankruptcy filing. The Court, therefore, holds that the automatic stay enjoins the movants from filing or prosecuting a cross-claim" }, { "docid": "1121484", "title": "", "text": "proposition in the context of a tort committed while rendering services. 3. The claim arises based upon the debt- or’s conduct. The final theory, that the bankruptcy claim arises based upon the debtor’s conduct, we believe most closely reflects legislative intent and finds the most support in the case law. These cases have generally held the bankruptcy claim arises upon conduct by the debtor which would give rise to a cause of action, if other elements may later be satisfied. A brief review of frequently cited cases supporting this approach follows. In In re Johns-Manville Corp., 57 B.R. 680 (Bankr.S.D.N.Y.1986), creditors, not asbestos-related, seeking indemnity or contribution from debtor Johns-Manville, moved for relief from the stay to pursue their claims in state court. This necessitated interpreting § 101(4) as to when bankruptcy claims arise. The bankruptcy court denied the relief from stay, noting “... the focus should be on the time when the acts giving rise to the alleged liability were performed ...” Id. at 690. The court found the operative time to be the sale of the defective goods by Johns-Manville to the creditors, which occurred prepetition. Id. Significantly, the Johns-Manville court was concerned with the policy of basing timing of claims on factors other than the debtor’s conduct. “Procedural and extraneous factors such as the timing of the filing of a summons and complaint by a third party, which is not associated with the underlying nature of the cause of action ... simply should not determine the existence or nonexistence of a ‘claim’.” Id. The bankruptcy court in In re A.H. Robins Co., 63 B.R. 986 (Bankr.E.D.Va.1986), reached a similar conclusion. There, a Dai-kon Shield claimant sought a declaration that her claim against the debtor manufacturer was postpetition and thus not subject to the automatic stay. The claimant had been inserted with the shield prepetition, but perceived no injury until postpetition. In analyzing when the bankruptcy claim arose, the A.H. Robins court rejected the reasoning in Frenville and found the definition of claim articulated in Edge broader than necessary to give effect to Bankruptcy Code goals. Id. at" }, { "docid": "10222639", "title": "", "text": "161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). In re Johns-Manville, 57 B.R. 680, 689 (Bankr.S.D.N.Y.1986); In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985). 2) Congress intended an extremely broad definition of “claim” for bankruptcy administration, which would include a subrogation claim, and the Supreme Court approved that congressional intent generally in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985). In re Johns-Manville, 57 B.R. 680, 687-88; Matter of Balwin-United Corp., 48 B.R. 901, 903 (Bankr.S.D.Ohio 1985) citing House Report No. 95-595, 95th Cong., 1st Sess. 309 (1977); and Senate Report No. 95-989, 95th Cong. 2d Sess. 21 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787; In re Yanks, 59 B.R. 56, 57 citing Ohio v. Kovacs. 3) Equality among creditors under bankruptcy law is frustrated if a surety by waiting to file suit for recovery against a debtor, could prejudice the rights of other creditors. In re Johns-Manville, 57 B.R. 680, 690; In re Yanks, 59 B.R. 56, 56 citing Williams v. U.S. Fidelity & Guaranty Co., 236 U.S. 549, 557, 35 S.Ct. 289, 291, 59 L.Ed. 713 (1915). Since the Second Circuit appears to be leaning away from Frenville, and since recent case law has exposed significant shortcomings in the case, this court would decline to follow Frenville, and find instead that Van Dorn’s claim for indemnity and contribution is a pre-bankruptcy petition claim against the bankruptcy estate, subject to Bankruptcy Court jurisdiction. VIOLATION OF THE AUTOMATIC STAY 11 U.S.C. § 362 In order to insure exclusive Bankruptcy Court jurisdiction over a debtor’s financial affairs, 11 U.S.C. § 362 automatically stays the commencement of a judicial proceeding outside of Bankruptcy Court by a pre-petition creditor against a debtor, until the debtor’s bankruptcy is closed or dismissed. The automatic stay does not prohibit the prosecution of an action against a debtor based upon a claim that arose after the filing of the bankruptcy petition. In re M. Frenville Co; Turner Broadcasting Sys. Inc. v. Sanyo Elec., Inc. 33 B.R. 996 (Bankr.N.D.Ga.1983), aff’d 742 F.2d 1465 (11th Cir.1984). In light of the court’s suggestion" }, { "docid": "3533763", "title": "", "text": "(Bkrtcy. D.Minn.1982). The Second Circuit added that this wide reaching definition was “intended so that virtually all obligations to pay money would be amenable to treatment in bankruptcy proceedings.” Id. at 34. In In re Johns-Manville Corp., 36 B.R. 743 (Bkrtcy.S.D.N.Y.1984), Manville filed for Chapter 11 protection precisely because the impact of future litigation based upon asbestos exposure would make the solvent corporation insolvent. As the Court stated, “Any plan emerging from this case which ignores [future asbestos claimants] would serve the interests of neither the debtor nor any of its other creditor constituencies in that the ... long-term economic drain on the debtor would not have been eliminated. Manville might indeed be forced to file again and again_” Id. at 746. It is abundantly clear that the Manville Court was concerned that if the asbestos claimants did not participate in the reorganization, the claims would not be discharged. Moreover, in In re Johns-Manville Corp. 57 B.R. 680, 689 (Bkrtcy.S.D.N.Y.1986), the Court declined to follow In re Frenville Co., 744 F.2d 332 (3d Cir.1984) cert denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), in which the Third Circuit Court of Appeals mistakenly applied state law rather than federal bankruptcy law to determine when creditors’ claims arose. See also, Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). The Manville Court reasoned that in determining whether or not a claim exists, “the proper focus should be on the time when the acts giving rise to the alleged liability were performed....” Manville, supra, 57 B.R. at 690. The Court continued, “(f)or federal bankruptcy purposes, a pre-petition ‘claim’ may well encompass a cause of action that, under state law, was not cognizable until after the bankruptcy petition was filed.” Id. We agree with the Manville Court and hold that a claim arises at the moment when acts giving rise to the alleged liability are performed. In the matter sub judice, the claims arose at the moment the Asbestosis Claimants came into contact with the asbestos. Thus, we hold that the claims" }, { "docid": "6280643", "title": "", "text": "the filing of the petition ... Id. at 202. Using this analysis, the court held that Grady had a claim that arose before the commencement of the case. Essentially the same test was applied in the asbestos case of In re Waterman S.S. Corp., 141 B.R. 552 (Bankr.S.D.N.Y.1992), vacated on other grounds, 157 B.R. 220 (S.D.N.Y.1993). In Waterman, former em ployees of the debtor sought a declaratory judgment holding that their asbestosis claims, which were manifested post-confirmation, were not discharged by the confirmation order. In reaching his decision, Bankruptcy Judge Conrad bifurcated the analysis into two issues: first, whether the individuals held claims, and second, if they did hold claims, whether these claims were discharge-able. In answering the first question, Judge Conrad followed the lead of the Johns-Man-ville asbestosis cases and reasoned that, in determining whether or not a claim exists, “the focus should be on the time when the acts giving rise to the alleged liability were performed,” In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986). Since the asbestos was manufactured prepetition, and since the individuals suffering injuries were exposed prepetition, the former employees held “claims” under § 101(5). However, because the debtor failed to include this known class of creditors in its schedules and failed to provide adequate notice to this known class, Judge Conrad held that the claimants did not have notice sufficient to meet due process requirements for discharging their claims. At least one case has used a similar application of the Conduct Test outside the mass tort context. In In re Edge, 60 B.R. 690 (Bankr.M.D.Tenn.1986), the debtor was a dentist. After the debtor filed his Chapter 7 petition, a former patient sought a declaration that a “claim” based on negligent treatment received prior to the debtor’s filing, but discovered afterwards, was a postpetition claim and thus not subject to the § 362 automatic stay. The court, applying a broad interpretation of claim as guided by the legislative history, concluded that the claim arose at the time of the debtor’s prepetition misconduct and thus was subject to the automatic stay. Id. at 705. As" }, { "docid": "6280642", "title": "", "text": "date. After the petition was filed, Grady manifested injuries related to the Daikon Shield. Relying on California’s “discovery rule” statute of limitations provision, Grady argued that she was not stayed from bringing suit against the debtor because her claim arose postpetition. The AH. Robins court disagreed. Applying the Conduct Test, the Fourth Circuit held that Grady’s claim was a prepetition contingent claim, since all of the acts constituting the tort other than the manifestation of injury had occurred prior to the petition date. 839 F.2d at 201. The court stated that Grady’s claim was undoubtedly contingent as that term is defined in Black’s Law Dictionary, and continued: [The claim] depends upon a future uncertain event, that event being the manifestation of injury from use of the Daikon Shield. We do not believe that there must be a right to the immediate payment of money in the case of a tort or allied breach of warranty or like claim, as present here, when the acts constituting the tort or breach of warranty have occurred prior to the filing of the petition ... Id. at 202. Using this analysis, the court held that Grady had a claim that arose before the commencement of the case. Essentially the same test was applied in the asbestos case of In re Waterman S.S. Corp., 141 B.R. 552 (Bankr.S.D.N.Y.1992), vacated on other grounds, 157 B.R. 220 (S.D.N.Y.1993). In Waterman, former em ployees of the debtor sought a declaratory judgment holding that their asbestosis claims, which were manifested post-confirmation, were not discharged by the confirmation order. In reaching his decision, Bankruptcy Judge Conrad bifurcated the analysis into two issues: first, whether the individuals held claims, and second, if they did hold claims, whether these claims were discharge-able. In answering the first question, Judge Conrad followed the lead of the Johns-Man-ville asbestosis cases and reasoned that, in determining whether or not a claim exists, “the focus should be on the time when the acts giving rise to the alleged liability were performed,” In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986). Since the asbestos was manufactured prepetition, and" }, { "docid": "4690231", "title": "", "text": "discretion of the third party. If the related bankruptcy claim could not be filed before the third party sued, that third party would control the timing of a bankruptcy claim. Given this fact, bankruptcy courts have refused to find that a bankruptcy claim and nonbankruptcy cause of action for indemnity arise simultaneously. In re Yanks, 49 B.R. 56, 58 (Bankr.S.D.Fla.1985) (“It would leave to the vagaries of the timing of events by third parties such obviously crucial issues of bankruptcy relief as priorities of distribution and dis-chargeability of obligations”). By focusing on the time of the debtor’s conduct, rather than the time of the indemnitee’s action, these courts have avoided a source of potential manipulation of the bankruptcy process. The indemnification cases have also involved debtors who are subject to multiple lawsuits stemming from a single set of facts. E.g., Matter of Baldwin-United Corp., 55 B.R. 885 (Bankr.S.D.Ohio 1985). If nonbankruptcy law were used to determine the status of claims, Chapter 11 claimants of equal status would receive unequal payment depending solely on when they learned of their right to indemnification. Hi-Lo Powered Scaffolding, Inc. v. Penn, 70 B.R. 606, 611 (Bankr.S.D.Ohio 1987). Outside the mass tort context, the majority rule is that a claim arises at the time when acts were performed against the injured party that gave rise to the alleged liability. See In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986) (asbestos panels delivered to and used by claimants pre-bankruptcy). The rule was properly applied in cases like Edge and Johns-Manville, where the wrongful acts against alleged victims clearly took place pre-petition albeit the damages and harms remained undiscovered until post petition. The indemnification cases illustrate the advantages in bankruptcy of a rule focusing on the debtor’s conduct. Such a rule is consistent and promotes equal treatment of similarly situated creditors. It also discourages manipulation of the timing of claims. By providing for the inclusion of remote and contingent obligations, more claims can be discharged. This broadened discharge furthers the Congressional bankruptcy policy of a fresh start. Thus, considerations of bankruptcy policy as well as authority support" }, { "docid": "18558924", "title": "", "text": "the employment contract which itself had become fully executed in 1981. The facts, as alleged, do establish that the “non-compete” clause was running from the 1981 termination of the debtor’s employment contract. The clause period was to run to November 1986 with some restrictions running even longer. The essential fact, as the court sees it, which was not alleged in this complaint is that there was some default or breach or at least notice of an intent to breach, that occurred prior to the bankruptcy filing date. This would have then given, at least arguably, a right to payment within the meaning of § 101(4) of the Bankruptcy Code which defines “claim.” Under the decision in the case of Matter of M. Frenville Company, Inc., 744 F.2d 332 (3rd Cir.1984), this transaction as a matter of law would not create a claim under the Bankruptcy Code. Frenville reads the “claim” definition to mean that under state law there had to exist a cause of action pre-bankruptcy. There clearly was no cause of action pre-bankruptcy in this case because there was no breach. It is unnecessary for me here to reach and decide whether I would follow Fren-ville in its strictest sense, or whether I believe the First Circuit will ultimately follow Frenville as a matter of law. It is enough to note that those cases that have criticized and refused to follow Frenville, the leading ones being Matter of Baldwin-United Corporation, 48 B.R. 901 (S.D.Oh.1985) and In re Johns-Manville Corporation, 57 B.R. 680 (S.D.N.Y.1986), involved facts in which some triggering event had occurred pre-bankruptcy even though as a matter of state law no “cause of action” existed until after the bankruptcy filing. Such a “triggering event” did not occur in this case. Taking the pleadings at their strongest and noting from the record that the debtor did not list with his scheduled debts any contingent liability to Francis or Maybrook that he wished to have discharged by this bankruptcy, I conclude that the pleadings fail to state a claim for in-junctive relief to the extent that they rely on the" } ]

[ { "docid": "17092314", "title": "", "text": "of plaintiff but that plaintiff was going to release him. However, defendant made no complaint but continued as a player. He was then used as manager for about five weeks and was relieved from those duties by request of the plaintiff, following which he again continued playing ball in the capacity of catcher. Bearing upon the question of the practical construction of this contract it is noted that defendant testified: “The man who was removed as manager in order to make me manager continued as a player with the Vera Cruz team.” In determining the meaning of an indefinite or ambiguous provision in a contract, the interpretation placed upon it by the parties prior to the time it became a matter of controversy is entitled to great, if not controlling, influence in ascertaining the intent and understanding of the parties and courts will generally follow such practical interpretation. Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410; Pitcairn v. American Refrigerator Transit Co., 8 Cir., 101 F.2d 929; Thomson v. Thomson, 8 Cir., 156 F.2d 581; Floyd v. Ring Construction Corp., 8 Cir., 165 F.2d 125; Craig v. Thompson, 8 Cir., 177 F.2d 457. In Pitcairn v. American Refrigerator Transit Co., supra, we among other things said: “Where there is obscurity or ambiguity, however, the language used should be read in the light of all the surrounding facts and circumstances, including the acts of the parties indicating what interpretation was placed upon it by the parties themselves. Contemporaneous exposition of the contract is entitled to great, if not controlling, influence in ascertaining the intention of the parties.” [101 F.2d 937.] The strict construction placed upon this contract by the instruction complained of would have prevented Owen as manager from temporarily relieving Owen as player, even though Owen as player had “gone into a slump” and the best interests of the club and its owner would be served by temporarily benching Owen the player. Such an act, we think, would not have justified plaintiff in repudiating his contract and suing for damages. Neither" } ]

[ { "docid": "12214620", "title": "", "text": "including the acts of the parties indicating what interpretation was placed upon it by the parties themselves. Contemporaneous exposition of the contract is entitled to great, if not controlling, influence in ascertaining the intention of the parties. Old Colony Trust Co. v. Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110; Brooklyn L. Insurance Company v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Sternberg v. Drainage District, 8 Cir., 44 F.2d 560; Powell v. Baker Ice Machine Co., 8 Cir., 8 F.2d 125; Wabash Railway Co. v. American Refrigerator Transit Co., 8 Cir., 7 F.2d 335. It is a significant fact that when the contracts were rewritten in 1894, after refrigeration services had become a recognized part of the refrigerator transportation service, no substantial change was made in the language of the contract of 1881 for division of surplus. It is to be noted too, that the parties continued until 1908 to distribute earnings on a basis which excluded these revenues. The master and the trial court, we think, correctly interpreted the contract in this respect. As to earnings on the lines of subsidiaries, the question is limited to the period following 1924. About that time the Missouri Pacific acquired a stock-controlled interest in certain railroad companies operating in southern Texas and Louisiana. With many of these subsidiaries, the refrigerator company had its separate and distinct contracts. Each of the subsidiaries operated separately and independently of the Missouri Pacific, with its own staff of officers and board of directors. The Gulf Coast Lines, consisting of several railroad companies, had no contract with the refrigerator company and paid over none of its refrigerator revenues to that company. The Gulf Coast Lines owned all of the stock in the International and Great Northern and the Missouri Pacific owned the controlling stock interest in the Gulf Coast Lines. The cross-appellants contend that the International and Great Northern and the Gulf Coast Lines should be regarded as subsidiaries of the Missouri Pacific. The Texas and Pacific Railroad had a contract with" }, { "docid": "5832996", "title": "", "text": "the Stipulation was unambiguous. Under New York law, the initial construction of an agreement “ ‘is a matter of law for the courts to decide.’ ” Cooper v. Gottlieb, 2000 WL 1277593, at *5 (S.D.N.Y. Sept.8, 2000), quoting K. Bell & Assocs., Inc. v. Lloyd’s Underwriters, 97 F.3d 632, 637 (2d Cir.1996); see also Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 299 (2d Cir.1996). The initial construction includes the threshold question “whether the terms of the contract are ambiguous.” Alexander & Alexander Servs. v. Certain Underwriters at Lloyd’s, London, 136 F.3d 82, 86 (2d Cir.1998). A contract is unambiguous if it possesses a “definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself,” and no reasonable basis for a difference of opinion exists. Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Plan, 7 F.3d 1091, 1095 (2d Cir.1993). If a contract is unambiguous on its face, a court must give effect to the contract as written and may not consider extrinsic evidence to evince the parties’ intentions. Bernstein Mgmt. Corp., 201 B.R. at 863, citing Huertas v. E. River Hous. Corp., 992 F.2d 1263, 1266 (2d Cir. 1993). Plain contractual language is not ambiguous simply because the parties offer different interpretations. Metropolitan Life Ins. Co. v. RJR Nabisco Inc., 906 F.2d 884, 889 (2d Cir.1990). While courts may not consider extrinsic evidence to evince parties’ intentions with regard to an unambiguous contract, in interpreting agreements, courts afford great weight to a party’s practical interpretation of its own agreement. IBJ Schroder Bank & Trust Co. v. Resolution Trust Corp., 26 F.3d 370, 374 (2d Cir. 1994); Bradlees Stores, Inc. v. St. Paul Fire and Marine Ins. Co. (In re Bradlees Stores, Inc.), 291 B.R. 307, 312 n. 3 (Bankr. S.D.N.Y.2003). Further, the “parties’ interpretation of the contract in practice, prior to litigation, is compelling evidence of the parties’ intent.” Ocean Transp. Line, Inc. v. American Philippine Fiber Indus., 743 F.2d 85, 91 (2d Cir.1984); see also Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 57 L.Ed. 1410 (1913) (“Generally" }, { "docid": "15230564", "title": "", "text": "(citing Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 57 L.Ed. 1410 (1913) (“Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 558 (Fed.Cir.1982) (“It is a familiar principle of contract law that the parties’ contemporaneous construction of an agreement, before it has become the subject of dispute, is entitled to great weight in its interpretation.”)). As the Court observed in System Fuels: The closer in time to contract formation, and the more distant the prospect of litigation, the more reliable the parties’ practical interpretation should be. In the face of litigation, when “[s]elf-interest stimulates the mind to activity, and sharpens its perspicacity,” parties “often claim more, but rarely less, than they are entitled to.” 79 Fed.Cl. at 53 (quoting Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877)). These basic principles will guide the Court in the analysis of an unusual and somewhat complex factual setting. B. Interpretation of the Standard Contract The Standard Contract did not contain an express acceptance rate for DOE’s performance. It is not surprising that the Standard Contract lacked any mention of the precise quantity of spent fuel that DOE would begin accepting in 1998. Plaintiffs here, as well as all industry participants, executed their Standard Contracts in 1983, nearly 15 years before DOE’s acceptance of spent fuel was to begin. DOE would have been remarkably clairvoyant to have known in 1983 how much spent fuel would exist in 1998, and how much spent fuel would need to be collected in 1998 to avoid the need for additional storage facilities at individual nuclear plants. Moreover, in 1983, DOE at most would have been targeting industry-wide quantities of spent fuel, rather than reactor-specific quantities to include in each Standard Contract. A more sensible approach, and the one that DOE adopted, was to include obligations in the Standard" }, { "docid": "7773857", "title": "", "text": "Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877). Courts have held that “[i]n eases where the language used by the parties to the contract is indefinite or ambiguous, and, hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. ... [I]n an executory contract, ... where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.” Chicago v. Sheldon, 9 Wall. 50, 76 U.S. 50, 54, 19 L.Ed. 594 (1869); see also Topliff v. Topliff, 122 U.S. 121, 131, 7 S.Ct. 1057, 30 L.Ed. 1110 (1887); Richard A. Lord, 11 Williston on Contracts § 32:14 (4th ed.) (2007) (“Given that the purpose of judicial interpretation is to ascertain the parties’ intentions, the parties’ own practical interpretation of the contract—how they actually acted, thereby giving meaning to their contract during the course of performing it—can be an important aid to the court. Thus, courts give great weight to the parties’ practical interpretation.”). In sum, where a contract is indefinite or ambiguous, the practical construction adopted by the parties is rehable and often controlling because it evidences what the parties believed the contract to require before they confronted the prospect of impending litigation. See Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 57 L.Ed. 1410 (1913) (“Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 558 (Fed.Cir.1982) (“It is a familiar principle of contract law that the parties contemporaneous construction of an agreement, before it has become the subject of a dispute, is entitled to great weight in its interpretation.”); see also Saul Subsidiary II Ltd. v. Barram, 189 F.3d 1324, 1326 (Fed.Cir.1999). The closer in time to contract formation, and the" }, { "docid": "18062709", "title": "", "text": "the contract compensation for overhaul was not due and payable prior to completion of the contract. The language is too clear to require construction. It was so construed by the officers of The Republic and McGeorge and so acted upon by all the parties. No other construction was suggested by any one so far as shown by the record until appellants filed their amended income tax returns of 1941 and 1942. Mr. L. R. Branting, Superintendent of The Republic, called as a witness for appellants, testified that the overhaul could have been estimated and paid monthly, but that “The contract says at the end of the job.” Mr. C. Jessup, Chief Engineer of The Republic, who made the final estimate of the overhaul in 1943, testified that he was called to make the computation in 1943. He said: “The contract we started with stated that overhaul would be paid at the termination of the job, and as soon as we accepted the work, I figured out the overhaul.” Since appellants now contend that compensation for overhaul was payable monthly their conduct in connection with its performance is important. It has long been the law that “Where the parties proceed in the performance of the contract as though it had a certain meaning and that meaning is not entirely inconsistent with the wording of the contract, it should prevail.” Elkan v. Sebastian Bridge Dist., 8 Cir., 291 F. 532, 550; Pitcairn v. American Refrigerator Transit Co., 8 Cir., 101 F.2d 929; Old Colony Trust Co. v. Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410. Apparently appellants have the impression that because compensation for an average haul of 1500 feet and for extra work was payable monthly in amounts based upon estimates of the engineer of The Republic and because it was possible to estimate the amount of overhaul monthly, the right to receive compensation for overhaul accrued monthly also. Such an assumption, however, is inconsistent with the plain language of the contract. The contract provided that average haul and extra work were to be estimated and paid for monthly" }, { "docid": "14443015", "title": "", "text": "insurance policy, it is clear that her right of recovery was not barred by either the contract of settlement or the decree of divorce. Andrews v. Andrews, 8 Cir., 97 F.2d 485; Shoudy v. Shoudy, supra. It appears from the undisputed evidence that no mention was made of the insurance until after the contract was signed, nor was any mention made of it in the decree. Not only this, but it is clear that the parties did not intend by this contract of settlement to take from Caroline Thomson her interest in the insurance policy. In fact, it appears from the undisputed evidence that her interest in this policy was a part of the consideration for the contract of settlement so that the contract, instead of being a bar, furnished a .further support to sustain appellant’s claim to a vested right in the proceeds of the policy. In determining the scope or meaning of the contract, the interpretation placed upon it by the parties themselves is entitled to great if not controlling influence. Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410. In view of the conclusions reached by us, it is not deemed necessary to consider the other contentions urged by appellant. The judgment appealed from is reversed and the cause remanded with directions to enter judgment in favor of Caroline Thomson for the proceeds of the policy deposited in court by the Insurance Company." }, { "docid": "15230563", "title": "", "text": "Fed.Cl. 344, 354 n. 11 (2006)). Here, DOE entered into the Standard Contracts with nuclear utilities to fulfill the purposes of the NWPA, and the Standard Contract should be read in light of the intentions of the NWPA. See, e.g., Maine Yankee, 225 F.3d at 1341-42 (addressing the Standard Contract in terms of the NWPA’s requirements); Indiana Michigan Power Co., 88 F.3d at 1274-77 (looking to the NWPA to determine DOE’s obligations under the Standard Contract, and vacating DOE’s contract interpretation as contrary to the statute). Third, the Court looks to the intent of the parties. See Commonwealth Edison Co. v. United States, 56 Fed.Cl. 652, 662 (2003) (“The purpose of contract interpretation is to carry out the intent of the parties.”) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)). In determining the contemporaneous understanding of the parties, the Court should give the greatest weight to those actions occurring closer in time to contract formation, before the contract has become the subject of a dispute. Sys. Fuels, Inc., 79 Fed.Cl. at 53 (citing Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 57 L.Ed. 1410 (1913) (“Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 558 (Fed.Cir.1982) (“It is a familiar principle of contract law that the parties’ contemporaneous construction of an agreement, before it has become the subject of dispute, is entitled to great weight in its interpretation.”)). As the Court observed in System Fuels: The closer in time to contract formation, and the more distant the prospect of litigation, the more reliable the parties’ practical interpretation should be. In the face of litigation, when “[s]elf-interest stimulates the mind to activity, and sharpens its perspicacity,” parties “often claim more, but rarely less, than they are entitled to.” 79 Fed.Cl. at 53 (quoting Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed." }, { "docid": "2964538", "title": "", "text": "allowed. Appellants’ first two out of its three assignments of errors and the arguments in support thereof, are to the effect that the trial court committed prejudicial error, as it held the subcontract ambiguous or at least uncertain in its terms and evidence as to supposed construction by the parties properly admitted to give it meaning. If from the subcontract it can be said that its terms are “clear, certain and definite”, then its provisions are binding and controlling and are to be accepted “without reference to any rules of interpretation,” since courts are without right to make a contract for the parties different from the one they actually made. Pitcairn v. American Refrigerator Transit Company, 8 Cir., 101 F.2d 929 (1939). But as said in the same case: “ * * * if the contract is ambiguous or obscure, it is open to interpretation. Generally speaking, the cardinal rule of interpretation is to ascertain, if possible, from the instrument itself the intention of the parties, and to give effect to that intention. Where there is obscurity or ambiguity, however, the language used should be read in the light of all the surrounding facts and circumstances, including the acts of the parties indicating what interpretation was placed upon it by the parties themselves. Contemporaneous exposition of the contract is entitled to great, if not controlling, influence in ascertaining the intention of the parties.” Old Colony Trust Company v. Omaha, 230 U.S. 100, 33 S. Ct. 967, 57 L.Ed. 1410; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110; Brooklyn Life Insurance Company of New York v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Sternberg v. Drainage District, 8 Cir., 44 F.2d 560; Powell v. Baker Ice Machine Company, 8 Cir., 8 F.2d 125, and Wabash Railway Company v. American Refrigerator Transit Company, 8 Cir., 7 F.2d 335. (Emphasis supplied.) To the same effect is Pasquel v. Owen, 8 Cir., 186 F.2d 263 (1950), where Judge Gardner speaking for this court made the following comment: “ * * * the interpretation placed upon it by the parties prior" }, { "docid": "3576074", "title": "", "text": "engineers of the railway company, and that the railway company would 2>ay the defendants for the work done by plaintiffs only in accordance with the measurements and classifications of the engineers of the railway company, and they had no reason to suspect or believe that defendants were binding themselves to pay the plaintiffs for work done in accordance with different measurements or classifications than those made by the engineers of the railway company. Again, there is another well-recognized and perfectly just rule of construction of executory contracts, which is: “Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the court in giving effect to its provisions.” 9 Cyc., subject “Contracts,” p. 588. As said by Judge Thayer in Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co. (C. C.) 34 Fed. 254: “The agreement being executory, the practical construction adopted by the parties thereto, and by their successors, during a period of several years, Is entitled to great, if not' controlling, influence in determining what is the proper interpretation of the same, as was held in Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057, 30 L. Ed. 1110, and Chicago v. Sheldon, 9 Wall, 54, 19 L. Ed. 594. It is well understood that the practical construction of a contract adopted by the parties thereto will not control or override language that is so plain as to admit of no controversy as to its meaning. In all such eases the intent of the parties must be determined by the language employed rather than by their acts; but if the language employed is of doubtful import, or if the contract contains no provisions on a given point, or if it fails to define with certainty the duties of the parties with respect to a particular matter or in a given emergency, then beyond all question it is proper to consider how the parties have construed the instrument with respect to such debatable points. If both parties to an agreement for a considerable period," }, { "docid": "2964539", "title": "", "text": "is obscurity or ambiguity, however, the language used should be read in the light of all the surrounding facts and circumstances, including the acts of the parties indicating what interpretation was placed upon it by the parties themselves. Contemporaneous exposition of the contract is entitled to great, if not controlling, influence in ascertaining the intention of the parties.” Old Colony Trust Company v. Omaha, 230 U.S. 100, 33 S. Ct. 967, 57 L.Ed. 1410; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110; Brooklyn Life Insurance Company of New York v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Sternberg v. Drainage District, 8 Cir., 44 F.2d 560; Powell v. Baker Ice Machine Company, 8 Cir., 8 F.2d 125, and Wabash Railway Company v. American Refrigerator Transit Company, 8 Cir., 7 F.2d 335. (Emphasis supplied.) To the same effect is Pasquel v. Owen, 8 Cir., 186 F.2d 263 (1950), where Judge Gardner speaking for this court made the following comment: “ * * * the interpretation placed upon it by the parties prior to the time it became a matter of controversy is entitled to great, if not controlling, influence in ascertaining the intent and understanding of the parties and courts will generally follow such practical interpretation.” Old Colony Trust Company v. City of Omaha and Pitcairn v. American Refrigerator Transit Company, supra; Thomson v. Thomson, 8 Cir., 156 F.2d 581; Floyd v. Ring Construction Corp., 8 Cir., 165 F.2d 125 and Craig v. Thompson, 8 Cir., 177 F.2d 457. (Emphasis supplied). As we evaluate the contentions in support of those assignments, we find conflict between the last sentence in paragraph 1-22 of the subcontract and Item 3 thereof, in that the last clause of that sentence in conjunction with other parts thereof calls on the contractor to provide and place the top soil at his own expense, while “topsoil hauled in, including fine machine grading”, prescribes payment at a fixed price. Another one, “topsoil hauled in” carries the connotation of unlimited quantity, “additional topsoil, if required * * * to a depth of 4 inches”, a limitation." }, { "docid": "18062710", "title": "", "text": "overhaul was payable monthly their conduct in connection with its performance is important. It has long been the law that “Where the parties proceed in the performance of the contract as though it had a certain meaning and that meaning is not entirely inconsistent with the wording of the contract, it should prevail.” Elkan v. Sebastian Bridge Dist., 8 Cir., 291 F. 532, 550; Pitcairn v. American Refrigerator Transit Co., 8 Cir., 101 F.2d 929; Old Colony Trust Co. v. Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410. Apparently appellants have the impression that because compensation for an average haul of 1500 feet and for extra work was payable monthly in amounts based upon estimates of the engineer of The Republic and because it was possible to estimate the amount of overhaul monthly, the right to receive compensation for overhaul accrued monthly also. Such an assumption, however, is inconsistent with the plain language of the contract. The contract provided that average haul and extra work were to be estimated and paid for monthly as the work progressed, but overhaul was neither to be estimated nor paid for until the contract was completed. Since by the terms of the contract the obligation of McGeorge to pay and the right of Craig to receive payment for overhaul did not become final and definite in amount until after the completion of the contract in 1943, the court did not err in entering judgment for the Collector and dismissing the complaint. Affirmed." }, { "docid": "16900726", "title": "", "text": "was determinative of the route from the West Coast mills to Odair. This'gateway at the time was closed but could be opened by agreement between the plaintiff and the Great Northern Railway Company. That an agreement for the interchange of shipments under a Section 22 contract with the United States could be effected must have been certain to the representatives of the plaintiff in the conference. A tentative agreement was reached April 4, 1934. Negotiations were continued and the written contract placed in its final form some eight months later. It was outlined in the Clark letter of April 4, 1934, to the Chief Engineer. The contract was dated November 19, 1934. It was signed by the plaintiff March 4, 1935, and by the Secretary of the Interior July 17, 1935, fifteen and one-half months after the Denver Conference. A number of well settled principles of the law of contracts will be helpful : The meaning of a contract should be ascertained from the language of the written instrument itself and where the provisions are plain and unambiguous the contract is conclusive; Miller v. Robertson, 266 U.S. 243, 45 S.Ct. 73, 69 L.Ed. 265; De Witt v. Berry, 134 U.S. 306, loc. cit. 312, 10 S.Ct. 536, 33 L.Ed. 896; Fogle & Co. v. United States, 4 Cir., 135 F.2d 117; International Co. of St. Louis v. Sloan, 10 Cir., 114 F.2d 326; Pitcairn v. American Refrigerator Transit Co., 8 Cir., 101 F.2d 929; Wm. Lindeke Land Co. v. Kal L.R. 1393. In the construction of contracts, language should be given if possible its usual and ordinary meaning and the object is to find out from the words used what the parties intended. Florida Central Railroad v. Schutte, 103 U.S. 118, 26 L.Ed. 327; Ætna Insurance Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369; Shell Oil Co. v. Manley Oil Corporation, 7 Cir., 124 F.2d 714. A court will not resort to rules of construction where the intent of the parties is expressed in clear and unambiguous" }, { "docid": "12819760", "title": "", "text": "the contract reveals that plaintiff has no cause of action for the extra compensation claimed. This conclusion is necessitated upon either of two grounds. First, even if we could accept plaintiff’s theory that the laying of mains behind the curb was an extra under the contract, the clear and unambiguous terms of the “extras” clause were not complied with. The “extras” clause provides for a written order for any extra work performed and in addition requires claims to be submitted within 30 days of completion of the extra work. It is undisputed that no written orders were prepared, nor was any claim made until some 10 months after completion of the job. Non-compliance with this “extras” clause bars recovery for alleged extra work performed under the contract. Goodwin, Inc. v. City of Lafayette, 418 F.2d 698, 701 (5th Cir. 1969); Alden v. Central Power Electric Cooperative, 168 F.Supp. 19, 21 (D.N.D.1958). Although waiver of the contractual requirements is possible, United States v. Henke Construction Co., 157 F.2d 13, 20-21 (8th Cir. 1946); Alden v. Central Power Electric Cooperative, supra, 168 F.Supp. at 21-22, a definite agreement to pay is required to establish a waiver. United States v. Henke Construction Co., supra, 157 F.2d at 21. Here there is no evidence even indicating a definite agreement to pay. The conduct of Linneman during the performance of the contract will not support a conclusion of waiver. No demand for extra compensation was made during the performance of the contract, nor until 10 months after the completion of the job. This is a strong indication that the laying of mains behind the curbs, while more costly, was not regarded by Linneman as an extra under the contract. See Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913), wherein the Court stated: Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence. Accord, Craig v. Thompson, 177" }, { "docid": "7048192", "title": "", "text": "ABC’s payments to Wingate on its behalf. It was not until well after this lawsuit was under way that Blendingwell decided to advance the interpretation that it was to pay Croce only 50% of the 75% paid to it by ABC in cash, and no part of the amounts ABC paid to Wingate to satisfy Blendingwell’s debt. Given this prior practice and the substantial sum involved — $334,000—it is the parties’ practical construction of the contract prior to the commencement of the litigation that is compelling. See, e.g., Old Colony Trust Co. v. Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913) (“Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence.”); William C. Atwater & Co. v. Panama Rail Road Co., 255 N.Y. 496, 501, 175 N.E. 189, 191 (1931) (“The courts in determining the obligations of a contract should, when possible, apply the same measure as the parties have applied in performing their obligations.”); Woolsey v. Funke, 121 N.Y. 87, 92, 24 N.E. 191, 192 (1890) (“ ‘There is no surer way to find out what parties meant than to see what they have done____ Parties in such cases often claim more, but rarely less than they are entitled to.’ ”) (quoting Insurance Co. v.. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877)). Further, there was clear and unequivocal evidence that Blendingwell’s actions from 1972 to 1980 in paying Croce 50% of the net sums realized did not result from bookkeeping errors but reflected Blendingwell’s conscious contemporaneous interpretation of its contractual obligation to Croce. In 1975, a tape-recorded conference was held among, inter alios, Ingrid Croce and Blendingwell’s president Kurnit, in which Kurnit told Ingrid Croce that Blendingwell had given up one-half of its own share of the royalties and had not asked Croce to share the burden by accepting merely a 50-50 division with Blendingwell on the remaining 75%: [Kurnit]: I can tell you that the" }, { "docid": "12819761", "title": "", "text": "Power Electric Cooperative, supra, 168 F.Supp. at 21-22, a definite agreement to pay is required to establish a waiver. United States v. Henke Construction Co., supra, 157 F.2d at 21. Here there is no evidence even indicating a definite agreement to pay. The conduct of Linneman during the performance of the contract will not support a conclusion of waiver. No demand for extra compensation was made during the performance of the contract, nor until 10 months after the completion of the job. This is a strong indication that the laying of mains behind the curbs, while more costly, was not regarded by Linneman as an extra under the contract. See Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913), wherein the Court stated: Generally speaking, the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence. Accord, Craig v. Thompson, 177 F.2d 457, 460 (8th Cir. 1949); Elkan v. Sebastian Bridge District, 291 F. 532, 550 (8th Cir. 1923), cert. denied, 268 U.S. 690, 45 S.Ct. 510, 69 L.Ed. 1159 (1925). There is an additional ground upon which the trial court's action in directing a verdict must be sustained. The trial court was bound to apply the law of North Dakota in this diversity action. The North Dakota Supreme Court has recently held regarding claims for extras that : “[E]xtra work,” as used in connection with building contracts, means work which arises outside of and independent of the original contract; that is, something not required in the performance of the original contract, not contemplated by the parties, and not controlled by the terms of such contract. Trinity Builders, Inc. v. Schaff, 199 N.W.2d 914, 918 (N.D.1972). To find that Linneman was entitled to recover for its claim for extra work, the trial court would have had to determine that the claim was for “labor and materials not contemplated by or embraced in the terms of the" }, { "docid": "18600718", "title": "", "text": "The bankruptcy court determined that because the term was unambiguous, it could not consider this extrinsic evidence. When provisions of an insurance contract are ambiguous, the court may consider extrinsic evidence presented by the parties in order to ascertain their intended meaning. Properly considered extrinsic evidence includes evidence of the parties’ practice with respect to the contract after its formation. Indeed, the parties’ practical construction should be given “great, if not, controlling weight in the construction of the contract.” Viacom Intern., Inc. v. Lorimar Productions, Inc., 486 F.Supp. 95, 98 n. 3 (S.D.N.Y.1980) (Weinfeld, J.) (citing Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 972, 57 L.Ed. 1410 (1913)); accord Ocean Transp. Line v. AM. Philippine Fiber Ind., 743 F.2d 85, 91 (2d Cir.1984) (“The parties’ interpretation of the contract in practice, prior to litigation, is compelling evidence of the parties’ intent.”); Studley v. National Fuel Gas Supply Corp., 107 A.D.2d 122, 485 N.Y.S.2d 880, 884 (A.D. 4th Dep’t 1985) (“the practical construction put upon a contract by the parties in performing under it is of great importance in determining its meaning”); Webster’s Red Seal v. Gilberton World-Wide, 67 A.D.2d 339, 415 N.Y.S.2d 229, 230 (A.D. 1st Dep’t 1979) (court looked to parties’ practical construction of agreement as “persuasive evidence of the agreed intention of the parties”), aff'd 53 N.Y.2d 643, 438 N.Y.S.2d 998, 421 N.E.2d 118 (1981). Thus, it is not only proper for the court to consider evidence of the parties’ practical construction, it may place great reliance on it in construing the meaning of the deductible provision. Having concluded that the term “occurrence” is indeed ambiguous, I further conclude that the bankruptcy court should have considered extrinsic evidence of the parties’ practice with respect to the deductible provision. American Club asserts that in recent years its practice and the practice of its members (including PLI) has been to apply the deduct ible to each seaman injured by his exposure to asbestos under a particular triggered policy. MALC does not dispute that with regard to asbestosis claims, the practice of the" }, { "docid": "12214619", "title": "", "text": "The railroad companies performed only a transportation service and had nothing to do with the making of the refrigerator charges. As to such charges, the only obligation of the railroad companies was to make collections for the refrigerator company. The refrigeration business continued to be separate and independent even after the Interstate Commerce Act was amended to include refrigeration as a transportation service. Of course, if this contract is clear, certain and definite, its terms must be accepted without reference to any rules of interpretation. Courts have no right to make a contract for the parties that is different from that actually entered into by them. But on the other hand, if the con tract is ambiguous or obscure, it is open to interpretation. Generally speaking, the cardinal rule of interpretation is to ascertain, if possible, from the instrument itself the intention of the parties, and to give effect to that intention. Where there is obscurity or ambiguity, however, the language used should be read in the light of all the surrounding facts and circumstances, including the acts of the parties indicating what interpretation was placed upon it by the parties themselves. Contemporaneous exposition of the contract is entitled to great, if not controlling, influence in ascertaining the intention of the parties. Old Colony Trust Co. v. Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110; Brooklyn L. Insurance Company v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Sternberg v. Drainage District, 8 Cir., 44 F.2d 560; Powell v. Baker Ice Machine Co., 8 Cir., 8 F.2d 125; Wabash Railway Co. v. American Refrigerator Transit Co., 8 Cir., 7 F.2d 335. It is a significant fact that when the contracts were rewritten in 1894, after refrigeration services had become a recognized part of the refrigerator transportation service, no substantial change was made in the language of the contract of 1881 for division of surplus. It is to be noted too, that the parties continued until 1908 to distribute earnings on a basis which excluded these revenues. The" }, { "docid": "12684843", "title": "", "text": "Cinque, P.C., 221 F.3d 59, 66 (2d Cir.2000); Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 573 (2d Cir.1993); Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985); In re Consolidated Mutual Insurance Co., 77 N.Y.2d 144, 150, 565 N.Y.S.2d 434, 436, 566 N.E.2d 633 (1990). Further, under New York law, “the existence of an implied contract is” likewise “a question of fact.” Shapira v. United Medical Service, Inc., 15 N.Y.2d 200, 210, 257 N.Y.S.2d 150, 157, 205 N.E.2d 293 (1965). In interpreting an ambiguous contract provision, the factfinder “should, when possible, apply the same measure as the parties have applied in performing their obligations.” William C. Atwater & Co. v. Panama R. Co., 255 N.Y. 496, 501, 175 N.E. 189, 191 (1931); see, e.g., Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 118, 33 S.Ct. 967, 57 L.Ed. 1410 (1913) (of “great” significance is the “practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy”). “Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.” Restatement (Second) of Contracts § 202(4) (1979); see also Brooklyn Life Insurance Company of New York v. Butcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877) (“There is no surer way to find out what parties meant, than to see what they have done.... Parties in such cases often claim more, but rarely less, than they are entitled to.”). When the district court as factfin-der has considered relevant extrinsic evidence in connection with a contract provision that was not unambiguous, its findings as to the meaning of the provision are findings of fact that may not properly be disturbed unless they are “clearly erroneous.” Fed.R.Civ.P. 52(a); see, e.g., In Time Products, Ltd. v. Toy Biz, Inc., 38 F.3d 660, 665 (2d Cir.1994); Marine" }, { "docid": "7773856", "title": "", "text": "the underlying statute. See The Dalles Irrigation Dist. v. United States, 71 Fed.Cl. 344, 354 n. 11 (2006) (citing Roedler, 255 F.3d at 1352 (“For determination of contractual and beneficial intent when, as here, the contract implements a statutory enactment, it is appropriate to inquire into the governing statute and its purpose.”); Rendleman v. Bowen, 860 F.2d 1537, 1541—42 (9th Cir.1988)); see also Maine Yankee, 225 F.3d at 1341-42 (addressing the Standard Contract in terms of the requirements of the NWPA); American Hosp. Ass’n v. Schweiker, 721 F.2d 170, 183 (7th Cir.1983). In this instance, the express terms of the Standard Contract can be illuminated by the NWPA. Second, the post-adoption actions of parties to a contract can be useful in guiding interpretation. “The practical interpretation of an agreement by a party to it is always a consideration of great weight. The construction of a contract is as much a part of it as any thing else. There is no surer way to find out what parties meant, than to see what they have done.” Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273, 24 L.Ed. 410 (1877). Courts have held that “[i]n eases where the language used by the parties to the contract is indefinite or ambiguous, and, hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. ... [I]n an executory contract, ... where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.” Chicago v. Sheldon, 9 Wall. 50, 76 U.S. 50, 54, 19 L.Ed. 594 (1869); see also Topliff v. Topliff, 122 U.S. 121, 131, 7 S.Ct. 1057, 30 L.Ed. 1110 (1887); Richard A. Lord, 11 Williston on Contracts § 32:14 (4th ed.) (2007) (“Given that the purpose of judicial interpretation is to ascertain the parties’ intentions, the parties’ own practical interpretation of the contract—how they actually acted, thereby giving meaning to their contract during the course of performing it—can be an" }, { "docid": "16900727", "title": "", "text": "plain and unambiguous the contract is conclusive; Miller v. Robertson, 266 U.S. 243, 45 S.Ct. 73, 69 L.Ed. 265; De Witt v. Berry, 134 U.S. 306, loc. cit. 312, 10 S.Ct. 536, 33 L.Ed. 896; Fogle & Co. v. United States, 4 Cir., 135 F.2d 117; International Co. of St. Louis v. Sloan, 10 Cir., 114 F.2d 326; Pitcairn v. American Refrigerator Transit Co., 8 Cir., 101 F.2d 929; Wm. Lindeke Land Co. v. Kal L.R. 1393. In the construction of contracts, language should be given if possible its usual and ordinary meaning and the object is to find out from the words used what the parties intended. Florida Central Railroad v. Schutte, 103 U.S. 118, 26 L.Ed. 327; Ætna Insurance Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395; United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369; Shell Oil Co. v. Manley Oil Corporation, 7 Cir., 124 F.2d 714. A court will not resort to rules of construction where the intent of the parties is expressed in clear and unambiguous language. New York Life Insurance Co. v. Jackson, 7 Cir., 98 F.2d 950; Columbia Gas Construction Co. v. Holbrook, 81 F.2d 417; MacDonald v. Commissioner of Internal Revenue, 6 Cir., 76 F. 513, 17 C.J.S., Contracts, § 294. p. 683. A contract is ambiguous when it is reasonably and fairly susceptible to two different constructions. Order of United Commercial Travelers v. Sevier, 8 Cir., 121 F.2d 650; Blevins v. Reidling, 289 Ky. 335, 158 S.W.2d 646. A contract is not ambiguous where the court can determine its meaning without any other guide than a knowledge of the simple facts on which the language used depends for its meaning. National Pigments & Chemical Company v. C. K. Williams Company, 8 Cir., 94 F.2d 792. In view of these principals the language of the rate contract claims attention. The agreement of the parties to this action should be determined from the contents of this document unless it is indefinite, uncertain or ambiguous. An analysis of the language pertaining to the issues in this case should be made." } ]

[ { "docid": "22713891", "title": "", "text": "appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). The appeal in No. 01-1007 is from the District Court’s order recharacterizing Okereke’s motion under 28 U.S.C. § 2255 as one pursuant to 28 U.S.C. § 2241, and by doing so, empowering itself to review the motion on its merits. The government maintains that the District Court did not have jurisdiction to hear the motion in the first instance. We agree. Okereke argues that his third motion under § 2255 was, in fact, a motion made under § 2244, but does not explain why this is important. Section 2244 refers to procedures and applications necessary to gain certification for successive habeas corpus petitions from courts of appeals, and must be read in conjunction with § 2255. In re Turner, 267 F.3d 225, 227 (3d Cir.2001). In any event, the District Court properly construed Appellant’s third motion as a petition under § 2255 for ha-beas corpus relief. Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution. See Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). In In re Dorsainvil, we interpreted the statutory language providing that § 2255 must be used to raise a challenge to the validity of a conviction or sentence unless that section is “inadequate or ineffective.” 119 F.3d 245, 251 (3d Cir.1997). We found such a situation in In re Dorsainvil, where the petitioner was in the “unusual position” of a prisoner with no prior opportunity to challenge his conviction for a crime that an intervening change in substantive law could negate with retroactive application. Id. In short, Dorsainvil may have been convicted for conduct the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), deemed not to be criminal." } ]

[ { "docid": "23101140", "title": "", "text": "remedy so as to allow Alaimalo to proceed under § 2241,” Alaimalo v. United States, 317 Fed.Appx. 619, 620 (9th Cir.2008), was not clearly erroneous. Indeed, although we need not go that far to decide this case, the prior holdings were not error at all. Specifically, a motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 may be entertained notwithstanding the petitioner’s “fail[ure] to apply for relief, by motion [pursuant to 28 U.S.C. § 2255], to the court which sentenced him, or that such court has denied him relief [if] the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Alaimalo did initially file a petition for relief “to the court which sentenced him,” although he did not chai lenge his conviction on the counts of importation on the ground on which Cabaccang ultimately prevailed. Nor, if he had raised the issue, could he have obtained relief from the district court because Ninth Circuit law had not changed since he unsuccessfully raised the issue on direct appeal. Cf. Davis v. United States, 417 U.S. 333, 341-42, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (where Court of Appeals decision changed the law since petitioner’s trial and appeal, law of the case doctrine did not bar a new hearing on a legal issue previously determined against him). Nevertheless, it is not so clear, as the majority suggests, that this circumstance rendered the remedy by motion, pursuant to 28 U.S.C. § 2255, “inadequate or ineffective to test the legality of his detention.” First, nothing would have precluded Alaimalo from seeking a change in applicable Ninth Circuit law. Indeed, at the time he filed his first petition, the Court of Appeals for the First Circuit had already ruled in an opinion that would be relied upon in Cabaccang, that a defendant’s conduct in transporting drugs from one location within the United States to another, despite traveling over international waters, did not constitute “importation” within the meaning of 21 U.S.C. § 952(a). See United States v. Ramirez-Ferrer, 82 F.3d 1131, 1144 (1st" }, { "docid": "22546095", "title": "", "text": "118 S.Ct. 1604; see also Graham, 168 F.3d at 786 (concluding that habeas petitioner could not show that he might have relied on pre-AEDPA law when claims could have been raised in prior habeas petition). Because Jones has not shown that he relied in any fashion on pre-AEDPA law, he cannot demonstrate that application of the gatekeeping provisions of amended § 2255 have an impermissible retroactive effect as applied to him. III. Jones concedes that if application of the gatekeeping provisions of amended § 2255 is not impermissibly retroactive, those provisions mandate that we deny his request for permission to file a second or successive § 2255 motion. He maintains, however, that his inability to file a second or successive § 2255 motion makes that remedy inadequate or ineffective to test the legality of his detention, thereby entitling him to file a petition for a writ of habeas corpus under 28 U.S.C.A. § 2241. 28 U.S.C.A. § 2241 allows a federal prisoner to seek a writ of habeas corpus. A habeas petition under § 2241 must, however, be filed in the district in which the prisoner is confined. See id. § 2241(a). This requirement caused a number of practical problems, among which were difficulties in obtaining records and taking evidence in a district far-removed from the district of conviction, and the large number of habeas petitions filed in districts containing federal correctional facilities. See United States v. Hayman, 342 U.S. 205, 212-14, 72 S.Ct. 263, 96 L.Ed. 232 (1952). These practical problems led Congress to enact §.2255, “which channels collateral attacks by federal prisoners to the sentencing court (rather than to the court in the district of confinement) so that they can be addressed more efficiently.” Triestman v. United States, 124 F.3d 361, 373 (2d Cir.1997); see Hayman, 342 U.S. at 219, 72 S.Ct. 263. Section 2255 thus was not intended to limit the rights of federal prisoners to collaterally attack their convictions and sentences. See Davis v. Unit ed States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (noting that “ § 2255 was intended to" }, { "docid": "5991487", "title": "", "text": "court determined that petitioner’s § 2255 motion was untimely since all of the grounds to support withdrawing his guilty plea could have been asserted on direct appeal or in a timely § 2255 motion. The court dismissed the claim for relief under § 2241 because Lurie had not shown that relief under § 2255 was “inadequate or ineffective” to test the legality of his conviction. This court denied a certifícate of appeal-ability on the dismissal of the § 2255 motion; we directed briefs, however, on the dismissal of the alternative request for a writ of habeas corpus pursuant to § 2241. A challenge to a federal conviction, like this one, is most appropriately brought as a motion under 28 U.S.C. § 2255. See United States v. Hayman, 342 U.S. 205, 217, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The district court correctly dismissed Lurie’s § 2255 motion as being beyond the one-year statute of limitations and/or grace period of 28 U.S.C. § 2255 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). A writ of habeas corpus on behalf of a petitioner may issue under 28 U.S.C. § 2241 only if it “appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255. Thus, the issue is whether § 2255 is inadequate or ineffective to test the legality of Lurie’s conviction. We believe it is not. While courts have not thoroughly defined what is meant by “inadequate or ineffective,” recent cases from our sister circuits make clear that more is required than demonstrating that there is a procedural barrier to bringing a § 2255 motion. See, e.g., In re Davenport, 147 F.3d 605, 608 (7th Cir.1998) (noting that it can’t be right and would nullify the AEDPA limitations if a prisoner, prevented from obtaining relief under § 2255, could simply turn to § 2241). Specifically, the § 2255 motion is not inadequate or ineffective merely because § 2255 relief has already been denied, see Charles, 180 F.8d at 757-58; In re Dorsainvil, 119 F.3d 245, 251" }, { "docid": "22660597", "title": "", "text": "the Fourth Circuit Court of Appeals’ decision in United States v. Cradle, 232 F.3d 890 (4th Cir.2000), reveals that Cradle did in fact seek relief pursuant to § 2255. However, the claims Cradle advanced in that motion are unknown as his appeal from the denial of relief was dismissed as having been untimely filed. Id. In January 2001, Cradle filed the underlying § 2241 petition in the United States District Court for the Middle District of Pennsylvania, claiming that the United States District Court for the Western District of North Carolina was without jurisdiction to impose the sentence that it did because the government failed to provide him with notice of its intent to pursue enhanced sentencing under the recidivist provisions of 21 U.S.C. § 841(b)(1)(A), as required by 21 U.S.C. § 851(a)(1). Despite conceding that he did not file a direct appeal challenging his sentence or challenging the enhanced penalty through the filing of a § 2255 motion, Cradle contends that a § 2241 petition is the proper avenue for him to raise this claim because he is now barred from presenting his claim to the sentencing court in a motion filed pursuant to 28 U.S.C. § 2255. The district court summarily dismissed the petition, having concluded that Cradle failed to show that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention merely because he may now be time barred from challenging the enhanced penalty through the filing of a § 2255 motion. Additionally, the court determined that Cradle’s claim did not fall within the narrow “savings clause” exception set forth in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.1998). Upon review, we conclude that the district court properly dismissed the underlying § 2241 petition through which Cradle sought to challenge his sentence. Cradle argues that a challenge" }, { "docid": "23303383", "title": "", "text": "109 (1974) (noting that “ § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus”). 28 U.S.C. § 2255, “Federal custody; remedies on motion attacking sentence,” states: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.... An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.... This section clarifies the interrelationship between habeas corpus proceedings under Section 2241 and the more streamlined proceedings under Section 2255. The latter is a complement to the former, and it was not intended to supplant the former. Charles v. Chandler, 180 F.3d 753, 758 (6th Cir.1999). Significantly, the Section 2255 remedy is not considered inadequate or ineffective simply because Section 2255 relief has already been denied, see In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997), and Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988); or because the petitioner is procedurally barred from pursuing relief under Section 2255, see In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir.1997). It is the petitioner’s burden to establish that his remedy under Section 2255 is inadequate or ineffective. DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir.1986). Thus, under Section" }, { "docid": "22799767", "title": "", "text": "L.Ed.2d 73 (1965); Cohen v. United States, 593 F.2d 766, 771 n. 12 (6th Cr.1979) (noting that § 2255 remedy is ineffective when petitioner is sentenced by three courts, none of which could grant complete relief) (dictum). None of these circumstances is applicable to [Caravalho] in this action. Furthermore, as noted above, 28 U.S.C. § 2255 is the exclusive remedy for a federal prisoner attacking the legality of his detention. That [Caraval-ho] may be barred from filing a second or successive motion pursuant to § 2255 in the sentencing court does not establish that the remedy provided in § 2255 is inadequate or ineffective. See Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (§ 2255’s substantive and procedural barriers by themselves do not establish that § 2255 is inadequate or ineffective); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997) (§ 2255 is not inadequate or ineffective merely because the petitioner is unable to meet the stringent gatekeeping requirements). In response to the district court’s denial of his § 2241 habeas petition, Caravalho filed a Motion for Judge to Voluntarily Withdraw. In what can only be charitably described as a lengthy diatribe, Caravalho contended that Judge Daniel should recuse himself on the basis of bias and prejudice. In particular, Caravalho contended that Judge Daniel’s prejudice was apparent from the fact that he had wrongfully dismissed Caravalho’s § 2241 petition. Judge Daniel denied the motion to withdraw, noting that it was based on nothing more than disagreement with the district court’s adverse rulings. Furthermore, the district court denied Caravalho leave to proceed in forma pauperis on appeal, holding as follows: I have examined the file and I have determined that leave to proceed in for-ma pauperis on appeal must be denied. Pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure, I find that this appeal is not taken in good faith. Because [Caravalho] is attacking the validity of his conviction and has an adequate and effective remedy under 28 U.S.C. § 2255 in the sentencing court, he has not shown the existence of a reasoned, nonfrivolous argument" }, { "docid": "22230847", "title": "", "text": "shotgun in the pickup truck. Because Count 4 of the indictment referred to both “us[ing]” and “carrying]” the shotgun, the court reasoned, Petitioner’s conviction on that count was valid. This timely appeal ensued. DISCUSSION As we held in Lorentsen I, Petitioner’s Bailey claim may not be presented by a second or successive motion under § 2255 because Congress has determined that second or successive motions may not contain statutory claims. The issue here is whether Petitioner can avoid that limitation by petitioning for relief under the habeas statute, § 2241. In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (holding that, in general, “[a] federal prisoner authorized to seek relief under section 2255 may not petition for habeas corpus relief pursuant to section 2241”). However, § 2255 contains the following “escape hatch,” which is the focus of the parties’ arguments in this case: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. (Emphasis added.) Moore v. Reno, 185 F.3d 1054 (9th Cir.1999), establishes a baseline rule that § 2241 is not available under the inadequate-or-ineffective-remedy escape hatch of § 2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of § 2255. In Moore, the defendant had filed five § 2255 motions. The fifth motion came after the enactment' of AED-PA; the district court dismissed it because this court had not authorized it as required by 28 U.S.C. §§ 2244(b)(3) and 2255. The defendant then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The" }, { "docid": "22799766", "title": "", "text": "curiam). A habeas corpus application pursuant to 28 U.S.C. § 2241 “is not an additional, alternative, or supplemental remedy, to the relief afforded by motion in the sentencing court under § 2255.” Williams v. United States, 323 F.2d 672, 673 (10th Cir.1963) (per curiam), cert. denied, 377 U.S. 980, 84 S.Ct. 1887, 12 L.Ed.2d 749 (1964). “The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” Id. Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or ineffective only in extremely limited circumstances. See, e.g., Spaulding v. Taylor 336 F.2d 192, 193 (10th Cir.1964) (§ 2255 remedy ineffective when the original sentencing court is abolished); Stirone v. Markley, 345 F.2d 473, 475 (7th Cir.) (suggesting that § 2255 remedy might be ineffective when the sentencing court refuses to consider the § 2255 petition altogether or when the court delays inordinately consideration of the petition) (dictum), cert. denied, 382 U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 73 (1965); Cohen v. United States, 593 F.2d 766, 771 n. 12 (6th Cr.1979) (noting that § 2255 remedy is ineffective when petitioner is sentenced by three courts, none of which could grant complete relief) (dictum). None of these circumstances is applicable to [Caravalho] in this action. Furthermore, as noted above, 28 U.S.C. § 2255 is the exclusive remedy for a federal prisoner attacking the legality of his detention. That [Caraval-ho] may be barred from filing a second or successive motion pursuant to § 2255 in the sentencing court does not establish that the remedy provided in § 2255 is inadequate or ineffective. See Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (§ 2255’s substantive and procedural barriers by themselves do not establish that § 2255 is inadequate or ineffective); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997) (§ 2255 is not inadequate or ineffective merely because the petitioner is unable to meet the stringent gatekeeping requirements). In response to the district court’s denial of his § 2241 habeas petition, Caravalho" }, { "docid": "22072005", "title": "", "text": "Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for filing a second or successive § 2255 motion to vacate sentence. See Valdez-Pacheco, 237 F.3d at 1080 (noting that a “prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs.”). See also United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (stating that a prisoner may not resort to a writ of coram nobis merely because he cannot meet AEDPA’s gatekeeping requirements). Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order denying Massey’s petition for a writ of audita querela. . In the rare case that § 2255 is “inadequate or ineffective” because some limitation of scope or procedure would prevent a § 2255 proceeding from affording a full hearing and adjudication of a claim, a federal prisoner may seek relief via 28 U.S.C. § 2241. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). See also In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). This is not the case here. . Kessack v. United States, 2008 WL 189679 (W.D.Wash. Jan. 18, 2008), an unpublished decision relied upon by Massey, is not persua sive. Although Kessack suggests that the writ of audita querela may fill a gap in § 2255 where a case such as Booker does not apply retroactively on collateral review, the retroactivity of the rule relied upon by a prisoner is one of § 2255’s valid galekeeping requirements. We also note that Kessack presented equal protection considerations not present here." }, { "docid": "20624488", "title": "", "text": "we do not consider challenges to the advisory Guidelines, procedural Guidelines error, provisions other than career-offender designation, defaulted claims, or Guidelines errors that do not cause prejudice. XI. Savings Clause We note one final issue that the parties do not brief: § 2255 is not a complete substitute for a petition for a writ of habe-as corpus under 28 U.S.C. § 2241. Section 2255(e), referred to as the “savings clause,” provides that “[a]n application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this sectionf ] shall not be entertained ... unless it ... appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” We do not decide here whether Doe could properly petition for a writ of habeas corpus, but we note that Doe’s situation seems to fall between two of our cases. Compare In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997) (prisoner may petition for habeas when intervening Supreme Court case rendered conduct of which he was convicted no longer criminal), with Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002) (prisoner may not petition for habeas where intervening Su preme Court case changed the identity of factfinder and burden of proof on facts affecting sentence). The Seventh Circuit in a case with factual similarities to this one held that the second-or-successive bar rendered § 2255 inadequate to challenge a sentence after Begay when the petitioner’s first § 2255 motion was brought at a time when our Third Circuit precedent foreclosed his argument. Brown, 719 F.3d at 588. (Seventh Circuit law governed the § 2241 petition because Brown was incarcerated in Indiana; the § 2255 motion was governed by our law, as Doe was convicted in Pennsylvania.) However, the Eleventh Circuit rejected the same argument in Gilbert. 640 F.3d at 1295. We do not decide which of these cases we believe is correct. XII. Conclusion Doe argued that he was not a career offender before Begay came down. He was right when his lawyer, the District" }, { "docid": "22546096", "title": "", "text": "must, however, be filed in the district in which the prisoner is confined. See id. § 2241(a). This requirement caused a number of practical problems, among which were difficulties in obtaining records and taking evidence in a district far-removed from the district of conviction, and the large number of habeas petitions filed in districts containing federal correctional facilities. See United States v. Hayman, 342 U.S. 205, 212-14, 72 S.Ct. 263, 96 L.Ed. 232 (1952). These practical problems led Congress to enact §.2255, “which channels collateral attacks by federal prisoners to the sentencing court (rather than to the court in the district of confinement) so that they can be addressed more efficiently.” Triestman v. United States, 124 F.3d 361, 373 (2d Cir.1997); see Hayman, 342 U.S. at 219, 72 S.Ct. 263. Section 2255 thus was not intended to limit the rights of federal prisoners to collaterally attack their convictions and sentences. See Davis v. Unit ed States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (noting that “ § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus”); Hayman, 342 U.S. at 219, 72 S.Ct. 263 (“Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions.”). Indeed, when § 2255 proves “inadequate or ineffective to test the legality of ... detention,” a federal prisoner may seek a writ of habeas corpus pursuant to § 2241. 28 U.S.C.A. § 2255. Jones seeks to invoke this “savings clause” as a means of presenting his Bailey claim to a district court. He maintains that the gatekeeping provisions — which concededly bar him from presenting his Bailey claim in a second or successive § 2255 motion — render § 2255 “inadequate or ineffective.” We conclude that in a limited number of circumstances, like those presented here, § 2255 as amended by the AEDPA is inadequate or ineffective to test the legality of the detention of a federal prisoner. In such cases, the prisoner may file a petition for a writ of habe-as" }, { "docid": "22660598", "title": "", "text": "claim because he is now barred from presenting his claim to the sentencing court in a motion filed pursuant to 28 U.S.C. § 2255. The district court summarily dismissed the petition, having concluded that Cradle failed to show that his remedy under § 2255 is inadequate or ineffective to test the legality of his detention merely because he may now be time barred from challenging the enhanced penalty through the filing of a § 2255 motion. Additionally, the court determined that Cradle’s claim did not fall within the narrow “savings clause” exception set forth in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.1998). Upon review, we conclude that the district court properly dismissed the underlying § 2241 petition through which Cradle sought to challenge his sentence. Cradle argues that a challenge to the district court’s jurisdiction can be raised “any place and at any time,” see Petition for Writ of Habeas Corpus at 9, and since he is procedurally precluded from proceeding under § 2255, he must be afforded an opportunity to attack his sentence through a § 2241 petition. However, under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be “inadequate or ineffective,” a habeas corpus petition under § 2241 cannot be entertained by the court. See also Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. Id. (quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.1954)); see also In re Dorsainvil, 119 F.3d at 249-52. It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. Garris v." }, { "docid": "22713893", "title": "", "text": "See id. The District Court held that Oker-eke’s case fit within the narrow exception of In re Dorsainvil on the ground that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was an intervening change in law that Okereke could not have predicted and could not have used as the basis of a § 2255 motion. However, In re Dorsainvil was a rare situation. A § 2255 motion would be inadequate or ineffective only if the petitioner can show that a limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. See Cradle v. United States, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). The District Court misconstrued the narrowness of our holding in In re Dorsa-invil where we were careful to limit the holding by stating: “We do not suggest that § 2255 would be ‘inadequate or ineffective’ so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent ga-tekeeping requirements of the amended § 2255.” 119 F.3d at 251. Unlike the intervening change in law in In re Dorsainvil that potentially made the crime for which that petitioner was convicted non-criminal, Apprendi dealt with sentencing and did not render conspiracy to import heroin, the crime for which Okereke was convicted, not criminal. Accordingly, under our In re Dorsa- invil decision, § 2255 was not inadequate or ineffective for Okereke to raise his Ap-prendi argument. As a successive § 2255 motion, the District Court lacked jurisdiction to consider its merits. III. We thus proceed to Okereke’s appeal in No. 01-4075 in which he argues that the District Court erred when it denied his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c). Because Okereke has not only completed his prison sentence but also has been deported from the United States, the government argues that his appeal is moot. We agree. In order for us to exercise our jurisdiction, there must be an Article III § 2 case or" }, { "docid": "17455047", "title": "", "text": "with § 2255. “Second or successive motions” under § 2255 are typically barred unless a petition (1) contains newly discovered evidence that “would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty,” or (2) is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). However, where a petitioner seeks to file a successive habeas petition but cannot meet the requirements of the § 2255(h) exception, the petitioner may look to the “savings clause” of 28 U.S.C. § 2255(e) for recourse: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. Thus, where the remedy under § 2255 is inadequate or ineffective, the savings clause allows a federal prisoner to “bring a claim challenging his conviction or imposition of sentence under § 2241..” Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (per curiam). A § 2241 petition is not subject to the general rule against second or successive motions in the absence of newly discovered evidence or a new rule of constitutional law. See 28 U.S.C. § 2241. Our review of the dismissal of a § 2241 petition is de novo. Charles, 180 F.3d at 755. The petitioner carries the burden to establish that the savings clause applies to his petition and “[t]he circumstances in which § 2255 is inadequate and ineffective are narrow.” Peterman, 249 F.3d at 461. As we have cautioned, § 2255 is not “inadequate or ineffective” merely because ha-beas relief has previously been denied, a § 2255 motion is procedurally barred, or the petitioner has been denied permission to" }, { "docid": "22546076", "title": "", "text": "relief is inadequate or ineffective. See Caravalho, 177 F.3d at 1179 (“[W]e agree with the district court that the mere fact Caravalho is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate.”); Triestman v. United States, 124 F.3d 361, 376 (2d Cir.1997) (noting that section 2255’s substantive and proce dural barriers by themselves do not.establish that section 2255 is inadequate or ineffective). Similarly, a section 2255 motion “cannot become ‘inadequate or ineffective,’ thus permitting the use of [section] 2241, merely because a petitioner cannot meet the AEDPA ‘second or successive’ requirements.” United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); see also Tolliver, 211 F.3d at 878; In re Davenport, 147 F.3d 605, 608 (7th Cir.1998); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). To hold otherwise would flout Congress’s obvious intent to give meaning to these procedural requirements. A ruling that the section 2255 remedy was inadequate or ineffective, such that a petitioner could invoke section 2241, simply because the petitioner’s prior section 2255 motion was unsuccessful, or barred, or because he could not file another motion, would render those procedural requirements a nullity and defy Congress’s clear attempt to limit successive habeas petitions. Other circuits have indicated that a defendant may invoke the “savings clause” exception only when the Constitution demands it, or where otherwise Congress would violate the Suspension Clause by imposing a conviction or- sentence without allowing for section 2241 relief. See In re Davenport, 147 F.3d at 609 (noting that section 2241 relief may. be available to challenge a conviction or sentence in order that the prisoner “cannot complain that the limitations in [section] 2255 suspended whatever constitutional right he might have had, under the suspension clause or conceivably under the due process clause, to be allowed to seek habeas corpus”). Cf. Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 1229-30, 51 L.Ed.2d 411 (1977) (presence of similar “savings clause” in District of Columbia analogue to section 2255 defeats Suspension" }, { "docid": "1288594", "title": "", "text": "a vacation of his conviction for money laundering. We agree. A. Legal Background This Court reviews de novo a district court’s denial of a habeas petition filed under 28 U.S.C. § 2241. Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999) (per curiam). A federal prisoner must challenge the legality of his detention by motion under 28 U.S.C. § 2255, but may challenge the manner or execution of his sentence under 28 U.S.C. § 2241. United States v. Peterman, 249 F.3d 458, 461 (6th Cir.2001). However, a prisoner may also chai lenge the legality of his detention under § 2241 if he falls within the “savings clause” of § 2255, which states: An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e) (emphasis added); Peterman, 249 F.3d at 461. Thus, through the § 2255 “savings clause” vehicle, a petitioner may seek habeas relief under § 2241 where he can show that § 2255 provides an “inadequate or ineffective” means for challenging the legality of his detention. The Sixth Circuit has found the savings clause to apply only where the petitioner also demonstrates “actual innocence.” Peterman, 249 F.3d at 461-62; Charles, 180 F.3d at 757. B. Analysis Petitioner argues that his remedy under § 2255 is inadequate and ineffective to test his detention because he is unable to bring another § 2255 motion. Specifically, Petitioner is time-barred from presenting a new § 2255 motion. See 28 U.S.C. § 2255(f). He has also been denied permission to file second or successive motions. See 6th Cir. R. 22(b)(2). Furthermore, successive § 2255 motions require the presentation of new factual evidence or the demonstration of a new rule of constitutional law, and" }, { "docid": "22713890", "title": "", "text": "by a trial judge at sentencing using the preponderance of evidence standard. He based this motion on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On December 5, 2000, the District Court held that it had jurisdiction to consider Okereke’s claims by recharacterizing Ok-ereke’s § 2255 motion as a motion for relief pursuant to 28 U.S.C. § 2241. The District Court then denied Okereke relief on the merits of his claim, but issued a certificate of appealability on the Apprendi issue. That appeal is before us now. On May 24, 2001, Okereke filed a motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). The District Court denied Okereke’s motion, and Oker-eke appealed. The two appeals were consolidated, and are before us now. For the record, Okereke is no longer in the United States. On December 20, 2001, Okereke was released from federal custody and turned over to the INS for deportation. Okereke was deported on January 10, 2002. II. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). The appeal in No. 01-1007 is from the District Court’s order recharacterizing Okereke’s motion under 28 U.S.C. § 2255 as one pursuant to 28 U.S.C. § 2241, and by doing so, empowering itself to review the motion on its merits. The government maintains that the District Court did not have jurisdiction to hear the motion in the first instance. We agree. Okereke argues that his third motion under § 2255 was, in fact, a motion made under § 2244, but does not explain why this is important. Section 2244 refers to procedures and applications necessary to gain certification for successive habeas corpus petitions from courts of appeals, and must be read in conjunction with § 2255. In re Turner, 267 F.3d 225, 227 (3d Cir.2001). In any event, the District Court properly construed" }, { "docid": "22727297", "title": "", "text": "also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. Construing this language, courts have uniformly held that claims asserted by federal prisoners that seek to challenge their convictions or imposition of their sentence shall be filed in the sentencing court under 28 U.S.C. § 2255, see Bradshaw, 86 F.3d at 166; Cabrera v. United States, 972 F.2d 23, 25-26 (2d Cir.1992); Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979), and that claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner’s custodian under 28 U.S.C. § 2241. See Bradshaw, 86 F.3d at 166; United States v. Jalili, 925 F.2d 889, 893 (6th Cir.1991); DeSimone v. Lacy, 805 F.2d 321, 323 (8th Cir.1986) (per curiam); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir.1977). Still, pursuant to the “savings clause” in § 2255, a federal prisoner may bring a claim challenging his conviction or imposition of sentence under § 2241, if it appears that the remedy afforded under § 2255 is “inadequate or ineffective to test the legality of his detention.” Accord United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 96 L.Ed. 232 (1952); In re Hanserd, 123 F.3d 922, 929 (6th Cir.1997); Pirro, 104 F.3d at 299. Significantly, the § 2255 remedy is not considered inadequate or ineffective simply because § 2255 relief has already been denied, see In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997); Bradshaw, 86 F.3d at 166; Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.1979) (per curiam); Zvonaric v. Mustain, 562 F.2d 570, 572 n. 1 (8th Cir.1977) (per curiam), or because the petitioner is procedurally barred from pursuing relief under § 2255, see In re Vial, 115 F.3d 1192, 1194 n. 5 (4th Cir.1997); Garris v. Lindsay, 794 F.2d 722, 726-27 (D.C.Cir.) (per curiam), cert. denied, 479 U.S. 993," }, { "docid": "22751650", "title": "", "text": "Dorsainvil could make the showing necessary to invoke habeas relief, an issue for the district court. The coverage of the two provisions is not dissimilar. Indeed, in Davis the Court stated “[tjhat history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343, 94 S.Ct. at 2303; see also United States v. Anselmi 207 F.2d 312, 314 (3d Cir.1953) (“[Sjection 2255 ... afford[s] to a convicted federal prisoner a remedy which is the substantial equivalent of the conventional writ of habeas corpus.”) (emphasis added). We do not suggest that § 2255 would be “inadequate or ineffective” so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress’s intent in amending § 2255. However, allowing someone in DorsainvU’s unusual position — that of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate, even when the government concedes that such a change should be applied retroactively — is hardly likely to undermine the gatekeeping provisions of § 2255. Nothing in our holding in this case represents a deviation from our prior precedent strictly construing the applicability of the safety-valve language in § 2255. See Application of Galante, 437 F.2d 1164, 1165-66 (3d Cir.1971) (per curiam) (unfavorable legal standards prevailing in circuit where sentencing court located does not render § 2255 remedy “inadequate or ineffective”); Litterio v. Parker, 369 F.2d 395, 396 (3d Cir.1966) (per curiam) (sentencing court’s prior denial of identical claims does not render § 2255 remedy “inadequate or ineffective”); Mucherino v. Blackwell, 340 F.2d 94, 95 (3d Cir.1965) (per curiam) (same); Crismond v. Blackwell, 333 F.2d 374, 377 & n. 6 (3d Cir.1964) (neither 2,000 mile distance between sentencing court and district of confinement, nor denial of relief by sentencing court, nor denial of leave to appeal from sentencing court in forma pauperis, render § 2255 remedy" }, { "docid": "22660599", "title": "", "text": "to the district court’s jurisdiction can be raised “any place and at any time,” see Petition for Writ of Habeas Corpus at 9, and since he is procedurally precluded from proceeding under § 2255, he must be afforded an opportunity to attack his sentence through a § 2241 petition. However, under the explicit terms of 28 U.S.C. § 2255, unless a § 2255 motion would be “inadequate or ineffective,” a habeas corpus petition under § 2241 cannot be entertained by the court. See also Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. Id. (quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir.1954)); see also In re Dorsainvil, 119 F.3d at 249-52. It is the inefficacy of the remedy, not the personal inability to use it, that is determinative. Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986). Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. See In re Dorsainvil, 119 F.3d at 251; Charles v. Chandler, 180 F.3d 753, 758 (6th Cir.1999). The provision exists to ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to evade procedural requirements. See In re Dorsainvil, 119 F.3d at 251-52 (listing cases in which § 2255 is not “inadequate or ineffective” even though petitioner is unable to raise a successful claim under it). There is no doubt that the claim Appellant presents in this petition falls within the purview of § 2255. Yet Cradle cites neither an intervening change in the law nor any extraordinary circumstances (in fact, he readily concedes that he had multiple chances to challenge his sentence) to establish that his remedy under § 2255 is inadequate or ineffective." } ]

[ { "docid": "20764941", "title": "", "text": "individual to intermittent leave. S. Rep. 103-3 at 23. In short, the legislative history demonstrates that the FMLA protects an employee who must leave work, or reduce his or her work schedule, for medical reasons, as long as that employee can perform the job while at work. Our conclusion that an employee must be able to perform the essential functions of the job to take intermittent or reduced schedule leave is further supported by an examination of the restoration provisions of the FMLA. Upon return from FMLA leave, an employee is generally entitled to be restored to the position held prior to leave, or one that is equivalent in terms of benefits, pay and other terms and conditions. 29 U.S.C. § 2614(a)(1). However, an 'employee is not entitled to restoration if, at the end of the FMLA leave period, the employee is still unable to perform an essential function of the job. 29 C.F.R. § 825.214; Reynolds v. Phillips & Temro Industries, Inc., 195 F.3d 411, 414 (8th Cir.1999). An employee is only entitled upon return from leave to that which she would have been entitled absent the leave time. S.Rep. 103-3 at p. 3. Allowing Hatchett to stay in a position she cannot perform gives her more than if she had not taken leave. Based upon the undisputed facts, Hatchett was unable to perform the essential functions of the Business Manager position, and thus she was not entitled to intermittent or reduced schedule leave. The FMLA does not require an employer to allow an employee to stay in a position that the employee cannot perform. This type of claim is addressed under the ADA. For similar reasons, Hatchett’s FMLA retaliation claim fails. In order to establish the prima facie case for FMLA retaliation, the employee must demonstrate that FMLA leave was the determinative factor in the employment decision at issue. Beal v. Rubbermaid Commercial Products, Inc., 972 F.Supp. 1216, 1229 (S.D.Iowa 1997). Like the employee in Beal, Hatchett has not only failed to demonstrate she was entitled to FMLA leave, but she has failed to rebut the undisputed fact" } ]

[ { "docid": "4895196", "title": "", "text": "time of the first absence for the condition after the conclusion of the 12-month period. See id.; see also 29 C.F.R. § 825.200(b). However, when an employer has not designated a particular computation method, “the option that provides the most beneficial outcome for the employee will be used.” 29 C.F.R. § 825.200(e). In the present case, defendant did not establish any particular method and we must apply the method that produces the best result for plaintiff. Both the application of the calendar method and the “12-month period measured forward” or the “rolling backward” methods would allow plaintiff to establish eligibility as of March 18, 2003. First, under the calendar method, because plaintiff commenced her intermittent leave on October 1, 2002, she would be required to reestablish her eligibility upon her first absence after the conclusion of the initial twelve-month period, i.e., the calendar year, which is January 1, 2003. At that time, plaintiff could have reestablished eligibility for the year 2003, as she worked approximately 1,530 hours in 2002. (See Def. Rule 56.1 Stmt., Ex. T (2002, Week 52).) Second, applying either the “12-month period measured forward” or the “rolling back” method, plaintiff would be required to reestablish her eligibility upon taking FMLA leave after the conclusion of the twelve-month period, ie., after September 30, 2003. Because plaintiff did not take FMLA leave after September 30, 2003, she would not be required to reestablish her eligibility after being deemed an eligible employee as of October 1, 2002. Accordingly, applying any of the three methods (calendar method, “12-month period measured forward” or “rolling backward”), plaintiff was an eligible employee pursuant to the FMLA as of March 18, 2003. The next issue is whether plaintiff was entitled to FMLA leave on March 18, 2003. “[A]n eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job.” 29 C.F.R. § 825.200; 29 U.S.C. § 2612. In determining the “12-month" }, { "docid": "17453647", "title": "", "text": "a doctor’s certification supporting her claim of a serious health condition warranting FMLA leave. 29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(a). The Department of Labor provides a doctor questionnaire form, WH-380, which employers may choose to require for medical certifications. 29 C.F.R. § 825.306(a). The form tracks the language of the statute and implementing regulations, with one exception: While the regulation requires that intermittent leave applicants establish the medical necessity of “tak[ing] leave intermittently,” question 5.b on the form asks whether it will be medically necessary for the employee to “take work only intermittently or to work on a less than full schedule...” Id. § 825.306(b)(2)(ii); Form WH-380. Hoffman’s and PMT’s dispute over purported contradictions in her certification centered on this discrepancy. If the employer finds that the certification is incomplete, it must provide the employee with the chance to cure the deficiency. 29 C.F.R. § 825.305(d). The Seventh Circuit has held that employers have no responsibility to conduct further inves tigation when a certification is invalid on its face. Stoops v. One Call Communications, Inc., 141 F.3d 309, 313 (7th Cir. 1998). To be valid, a certification must show that the employee’s serious health condition makes her unable to perform job functions. 29 U.S.C. § 2612(a)(1)(D). Finding that Hoffman’s certification form concluded her migraines did not require absence from work, PMT offered Hoffman the chance to correct the deficiency. When she refused, PMT informed her that her FMLA leave application was canceled. Whether or not Hoffman was entitled to FMLA leave, the district court did not err in concluding that PMT neither knowingly nor recklessly violated the FMLA by rejecting Hoffman’s certification. See Thurston, 469 U.S. at 128-129, 105 S.Ct. 613. No evidence adduced at trial showed that PMT intentionally violated the FMLA — the first prong of Thurston — when it insisted that Hoffman assert that her condition required her to “take work only intermittently or to work on a less than full schedule.” Schmiedeknecht’s testimony suggested that the discrepancy between the regulation and Form WH-380 confused him. It did not show that he intentionally adopted an" }, { "docid": "22042158", "title": "", "text": "2612(a)(1)(C); or because of the birth, adoption, or placement in foster care of a child, 29 U.S.C. § 2612(a)(1)(A) & (B). See also 29 U.S.C. § 2611(11); 29 C.F.R. §§ 825.100(a), 825.114 (1997) (defining a “serious health condition”). Following a qualified absence, the employee is entitled to return to the same position or an alternate position with equivalent pay, benefits, and working conditions, and without loss of accrued seniority. 29 U.S.C. § 2614(a)(1); 29 C.F.R. §§ 825.100(e) (1997). The FMLA also provides for “intermittent” leave, which allows an employee to take such leave intermittently “when medically necessary,” such as to attend appointments with a health care provider for necessary treatment of a serious health condition. 29 U.S.C. § 2612(b); 29 C.F.R. § 825.117 (1997) (defining requirements for intermittent leave). These rights are essentially prescriptive, “set[ting] substantive floors” for conduct by employers, and creating “entitlements” for employees. Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir.1997). As to these rights, therefore, thé employee need not show that the employer treated other employees less favorably, and an employer may not defend its interference with the FMLA’s substantive rights on the ground that it treats all employees equally poorly without discriminating. Id. at 712. In such cases, the employer’s subjective intent is not relevant. The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA—for example, a twelve-week leave or reinstatement after taking a medical leave. . Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer. In addition to creating the above entitlements, the FMLA provides protection in the event an employee is discriminated against for exercising those rights. See 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220 (1997). In particular, “[a]n employer is prohibited from discriminating against employees ... who have used FMLA leave.” 29 C.F.R. § 825.220(c). Nor may employers “use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29" }, { "docid": "20764942", "title": "", "text": "return from leave to that which she would have been entitled absent the leave time. S.Rep. 103-3 at p. 3. Allowing Hatchett to stay in a position she cannot perform gives her more than if she had not taken leave. Based upon the undisputed facts, Hatchett was unable to perform the essential functions of the Business Manager position, and thus she was not entitled to intermittent or reduced schedule leave. The FMLA does not require an employer to allow an employee to stay in a position that the employee cannot perform. This type of claim is addressed under the ADA. For similar reasons, Hatchett’s FMLA retaliation claim fails. In order to establish the prima facie case for FMLA retaliation, the employee must demonstrate that FMLA leave was the determinative factor in the employment decision at issue. Beal v. Rubbermaid Commercial Products, Inc., 972 F.Supp. 1216, 1229 (S.D.Iowa 1997). Like the employee in Beal, Hatchett has not only failed to demonstrate she was entitled to FMLA leave, but she has failed to rebut the undisputed fact that she was unable to perform the job, and thus was terminated by the College. We have also reviewed the district court’s denial of Hatchett s motion to alter or amend the judgment and find no error in that ruling. Conclusion The undisputed evidence demonstrates that Hatchett was unable to perform the essential functions of the job of Business Manager and, therefore, she is not a qualified individual entitled to ADA protection. Hatchett has also failed to demonstrate entitlement to intermittent or reduced schedule leave. Accordingly, we affirm the district court’s grant of summary judgment for the College and Titus and the denial of Hatchett’s motion to alter or amend. . The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas, Western Division. . Hatchett does not appeal the dismissal of her ADEA, Title VII or state law claims. . For purposes of this appeal, the Court assumes as true that Hatchett specifically requested accommodations. . Hatchett also claims that she requested a \"work-hardening” program as an accommodation. However," }, { "docid": "20764938", "title": "", "text": "essential functions of the job with or without reasonable accommodation. See e.g. Sims v. Sauer-Sundstrand, Co., 130 F.3d 341, 343 (8th Cir.1997) (setting forth the prima facie elements of a retaliation claim). II. Family and Medical Leave Act Claims. The issue before the Court is one which has not been addressed in a reported opinion. Specifically, we must determine whether an employee, who is unable to perform the essential functions of a job, is entitled to intermittent or reduced schedule leave. The district court found that at the end of the twelve week period, Hatchett was unable to perform the essential functions of the job and was not entitled to restoration. On appeal, Hatchett does not specifically challenge the district court’s conclusion regarding full-time leave and entitlement to restoration. Rather, Hatchett attacks the district court’s failure to address her request for intermittent leave. Hatchett argues that she would have been able to return to work by the time her FMLA leave expired, or within 24 weeks, if the College and Titus would have allowed her to “work-harden” on a reduced schedule, gradually working up to full-time. We hold that the legislative history of the FMLA and the statute’s restoration provisions demonstrate that an employee who could not otherwise perform the essential functions of her job, apart from the inability to work a full-time schedule, is not entitled to intermittent or reduced schedule leave. The FMLA was enacted in the wake of increasing struggle between work and family life. To help ease the growing tension between work and family, the FMLA establishes a right to unpaid family and medical leave for those employees covered under the Act. S. Rep. 103-3 at p. 4, U.S.Code Cong. & Admin.News 1993, 3, 6. Specifically, the FMLA entitles an eligible employee to twelve (12) weeks leave for one of the articulated medical conditions, one of which is the employee’s own serious medical condition. 29 U.S.C. § 2612(a)(1). In addition to full-time leave, an employee may take intermittent or part-time leave when medically necessary. 29 U.S.C. § 2612(b)(1). The purpose of the FMLA is to allow" }, { "docid": "13725852", "title": "", "text": "v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Crawford v. TRW Auto. U.S. LLC, 560 F.3d 607, 611 (6th Cir.2009). III. Hunter alleges that Valley View placed her on involuntary leave based on her exercise of her rights under the FMLA, 29 U.S.C. § 2601 et seq. Valley View responds that it placed Hunter on involuntary leave because she was unable to perform the functions of her job and that it would have done so even if she had not taken FMLA leave. The FMLA entitles an “eligible employee” to up to twelve weeks of leave per year if the employee has a “serious health condition” that prevents the employee from performing the functions of her job. 29 U.S.C. § 2612(a)(1)(D); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005). An employee who utilizes FMLA leave is entitled to be restored to her position, or an equivalent one, when she returns from the leave. 29 U.S.C. § 2614(a)(1). However, an employee who remains “unable to perform an essential function of the position” once her FMLA leave ends is not entitled to restoration or another position. 29 C.F.R. § 825.216(c). An employer may not discriminate or retaliate against an employee for taking FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c); Arban v. West Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003). Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C. § 2617(a)(1); see, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 397 & n. 1 (6th Cir.2008) (noting damages awarded pursuant to 29 U.S.C. § 2617). There are two theories of recovery under the FMLA: an interference (or entitlement) theory and a retaliation (or discrimination) theory. See Grace v. USCAR, 521 F.3d 655, 669 (6th Cir.2008). Hunter brings this claim under the latter category. We have often relied on Title VII precedent to analyze FMLA retaliation claims. See, e.g., Daugherty v. Sajar" }, { "docid": "20764944", "title": "", "text": "a reasonable accommodation allows the employee to perform the essential functions of the job while at work. Hatchett does not demonstrate that the \"work-hardening” accommodation would accomplish this purpose. Hatchett also claims that intermittent FMLA leave is per se reasonable. Again, this argument fails because Hatchett does not provide any evidence that she could perform the essential functions of the job while at work. Even intermittent FMLA leave does not excuse an employee from the essential functions of the job. In addition, the regulations regarding FMLA clearly state that \"the leave provisions of the [FMLA] are wholly distinct from the reason- . able accommodation obligations of employers covered under the [ADA].” 29 C.F.R. § 825.702(a). . Hatchett, in her failure to hire argument, points to the College's failure to hire her in 1995, when the Dean of Administrative Services position was first advertised. This time is prior to the accident for which she now claims disability and is thus irrelevant to our inquiry. . In Reynolds v. Phillips & Temro Industries, Inc., we noted the district court's conclusion that the employee may have been entitled to intermittent leave, but for his inability to perform the job even with reduced hours. Reynolds v. Phillips & Temro Industries, Inc., 195 F.3d 411, 413 n. 2. However, we did not confirm the validity of the district court's assertion. . Hatchett also argues that the College imper-missibly forced her to take more leave than medically necessary, citing 29 C.F.R. § 825.203. We need not specifically address this assertion because we hold that Hatchett was not entitled to intermittent or reduced schedule leave." }, { "docid": "20764935", "title": "", "text": "the essential functions with reasonable accommodation. A reasonable accommodation is one which enables a individual with a disability to perform the essential functions of the position. 29 C.F.R. § 1630.2(o)(l)(i). From the outset, the Court notes that an employee seeking a reasonable accommodation must request such an accommodation. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir.1999). Hatchett alleges that at the time she returned, she requested a part-time schedule or intermittent FMLA leave. A part-time schedule may be reasonable in the appropriate circumstances. 42 U.S.C. § 12111(9). However, an employer is not required to reallocate essential functions that an individual must perform. Moritz, 147 F.3d at 788. Furthermore, an employer is not required to hire additional employees or assign those tasks that the employee could not perform to other employees. Id. The accommodation requested by Hatchett does not enable her to perform the essential functions of the job. Even if allowing Hatchett to work only four hours a day were reasonable, she still is not able to perform the essential functions while at work. There is also some question as to whether the Business Manager’s duties could be completed on a part-time schedule, which would make Hatchett’s part-time request unreasonable. See e.g. Burnett v. Western Resources, Inc., 929 F.Supp. 1349 (D.Kan.1996) (holding that plaintiff was not qualified because he was unable to perform the duties of the eight-hour job within his four-hour work restriction). However, because the Court finds that Hatchett is not able to otherwise perform the essential functions while on the job for the proposed four hours, she is not qualified. In addition, Hatchett has not rebutted this evidence with a showing of her individual capabilities. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995) (holding that if the employer demonstrates that an employee cannot perform the essential functions of the job with or without accommodation, the burden shifts to the employee to present evidence of individual capabilities). Hatchett claims her individual capabilities are demonstrated by her expected return to work full-time, if the College would have allowed her to work-harden." }, { "docid": "19885530", "title": "", "text": "adequate steps to assuage the impact of her intermittent leave on the District’s operations. A reasonable jury could conclude that the District, instead of taking such steps, expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working (and being paid) on an essentially part-time basis. Arguably, when her periods of intermittent leave prevented her from timely completing all of the duties she had performed as a full-time bookkeeper, she was removed from her position. Viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. If the jury were to take this view of the evidence, the performance problems noted by the district court could not provide a permissible non-discriminatory justification for an adverse employment action; the problems would be, under such circumstances, the direct result of Ms. Lewis’ exercise of her FMLA rights. The jury could conclude that the school district had numerous options consistent with the mandates of the FMLA that did not require it to maintain the problematic status quo. It could have shifted some of the bookkeeper’s job duties to other employees during the time that Ms. Lewis was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It also could have transferred Ms. Lewis to another position (such as a teacher’s assistant position) temporarily if she was unable to fulfill the essential functions of her job while taking intermittent FMLA leave. 29 U.S.C. § 2612(b)(2). The District declined to exercise any of these options. In short, we believe that a jury would be entitled to conclude that the school board and the superintendent held Ms. Lewis to the unrealistic expectation that she should accomplish satisfactorily all of the duties of the bookkeeper position during her period of FMLA-protected intermittent leave. The imposition of such unrealistic expectations, if accepted by the jury, would be relevant and probative evidence of a retaliatory intent. Finally, we believe that a reasonable jury could conclude that the actions of the District at the time of her dismissal from the bookkeeper position" }, { "docid": "20764940", "title": "", "text": "an employee to be away from the job, as opposed to using the statute as a means to force an employer to be directly involved in an employee’s rehabilitation. For example, an employee’s inability to work may be due to a required absence for chemotherapy. While the employee is receiving treatment and is away from his or her job, the employee is unable to perform the functions of his or her job and is entitled to leave under the FMLA. S. Rep. 103-3 at p. 23. However, while the employee is at his or her job, the employee must be able to perform the essential functions of the job. Similarly, the legislative history addresses a situation involving an employee who is recovering from a serious health condition and is able to return to work, but must periodically leave work for continued medical supervision. In such a situation, the employee is deemed to be temporarily unable to perform the functions of the job when away from work to receive the continued medical supervision, thus entitling that individual to intermittent leave. S. Rep. 103-3 at 23. In short, the legislative history demonstrates that the FMLA protects an employee who must leave work, or reduce his or her work schedule, for medical reasons, as long as that employee can perform the job while at work. Our conclusion that an employee must be able to perform the essential functions of the job to take intermittent or reduced schedule leave is further supported by an examination of the restoration provisions of the FMLA. Upon return from FMLA leave, an employee is generally entitled to be restored to the position held prior to leave, or one that is equivalent in terms of benefits, pay and other terms and conditions. 29 U.S.C. § 2614(a)(1). However, an 'employee is not entitled to restoration if, at the end of the FMLA leave period, the employee is still unable to perform an essential function of the job. 29 C.F.R. § 825.214; Reynolds v. Phillips & Temro Industries, Inc., 195 F.3d 411, 414 (8th Cir.1999). An employee is only entitled upon" }, { "docid": "20764937", "title": "", "text": "Employers, however, are not required to predict the employee’s degree of success with recovery. Browning, 178 F.3d at 1049. Protection under the ADA based upon an employee’s eventual degree of future recovery was not Con gress’s intent in passing the ADA. Id. Hatchett has not established her prima facie case of disability discrimination under the ADA. For these same reasons, Hatchett cannot prevail on her failure to hire claim. Hatchett claims that the College’s failure to hire her for the Dean of Administrative Services position violates the ADA. In her brief, she admits that the job descriptions of the two positions are virtually identical. This is fatal to her failure to hire claim. As we have noted, Hatchett is unable to perform the essential job functions of either position with or without reasonable accommodation, and thus is not a “qualified” individual with a disability entitled to ADA protection. Finally, Hatchett’s ADA retaliation claim fails because she has not presented any evidence that she was terminated for any reason other than her inability to perform the essential functions of the job with or without reasonable accommodation. See e.g. Sims v. Sauer-Sundstrand, Co., 130 F.3d 341, 343 (8th Cir.1997) (setting forth the prima facie elements of a retaliation claim). II. Family and Medical Leave Act Claims. The issue before the Court is one which has not been addressed in a reported opinion. Specifically, we must determine whether an employee, who is unable to perform the essential functions of a job, is entitled to intermittent or reduced schedule leave. The district court found that at the end of the twelve week period, Hatchett was unable to perform the essential functions of the job and was not entitled to restoration. On appeal, Hatchett does not specifically challenge the district court’s conclusion regarding full-time leave and entitlement to restoration. Rather, Hatchett attacks the district court’s failure to address her request for intermittent leave. Hatchett argues that she would have been able to return to work by the time her FMLA leave expired, or within 24 weeks, if the College and Titus would have allowed her" }, { "docid": "20587690", "title": "", "text": "seek both equitable relief and money damages “against any employer (including a public agency),” id. § 2617(a)(2), who violates the Act, id. § 2615(a)(1). Plaintiff advances two theories of liability: (1) that Defendants wrongfully denied him FMLA leave and (2) that they “discouraged” him from exercising his FMLA rights. To make out a prima facie case on a claim for interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must show: (1) that he is an eligible employee under the FMLA; (2) that the defendant is an employer as defined in the FMLA; (3) that he was entitled to leave under the FMLA; (4) that he gave notice to the defendant of his intention to take leave; and (5) that he was denied benefits to which he was entitled under the FMLA. Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 427 (S.D.N.Y.2004). “[C]ourts in the Second Circuit require a Plaintiff who asserts a FMLA interference claim on a ‘discouragement theory’ to offer evidence that she tried to assert her FMLA rights and was thereafter discouraged from taking FMLA leave” or that “the employer’s purported acts of discouragement would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise his or her FMLA rights.” Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 535 (S.D.N.Y.2009). A. Intermittent leave under the FMLA Because Defendants contend that Mr. Santiago was not entitled to the kind of FMLA leave that he sought and Mr. Santiago’s claims necessarily depend upon being denied benefits to which he was entitled under the FMLA, the Court will first consider this argument. Under the FMLA, an employee is entitled to leave “[bjecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” Id. § 2611(11)(B). Included within this definition of a “serious health condition involving continuing treatment by a health care provider” is a: • “Chronic serious health condition,”" }, { "docid": "2078020", "title": "", "text": "worked at least 1,250 hours during that period. See 29 U.S.C. § 2611(2). Nor do the parties dispute that GB is an employer subject to the act. See 29 U.S.C. § 2611(4). Finally, GB does not argue that Miller’s absences were not related to serious health conditions as defined by the statute. Clearly most of her absences were related to her diabetes and/or depression. . For example, Miller’s December 13, 2000, absence due to a urinary tract infection and her February 17, 2001, absence due to a rash most likely do not qualify as leave due to \"serious health conditions.\" . In its pleadings GB states that it decided to terminate Miller because she \"could not perform the essential functions of her job,” GB contends that an employee who is unable to perform the essential functions of a job is not entitled to intermittent or reduced schedule leave under the FMLA. The evidence is clear, however, that GB’s sole reason for terminating Miller was excessive absenteeism. Nevertheless, intermittent leave or a reduced schedule in order to treat or attend to a serious medical condition that renders an employee unable to perform his or her job is exactly what the leave time provision under the FMLA structure is designed for. See Spangler, 278 F.3d at 851 (finding that the FMLA, compared to the ADA, is designed to protect the employee who is \"unable to perform the functions of the position of the employee” from losing her position during the leave period which is \"[ejssentially ... an opportunity for the employee to treat or attend to the condition rendering her unable to perform her job.”)" }, { "docid": "1682455", "title": "", "text": "accommodation entails a set of entitlements for employees and a matched set of rules for employers.” Corujo-Marti, 519 F.Supp.2d at 223 (internal citations omitted). “The FMLA contains two distinct types of provisions: those establishing substantive rights and those providing protection for the exercise of those rights.” Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir.2005). The provisions of the act entitle eligible employees to a total of 12 workweeks of leave, which may be taken intermittently when medically necessary, for a serious health condition that makes the employee unable to perform the functions of her position. See id. (citing 29 U.S.C. §§ 2612(a)(1)(D), 2612(b)). “Following a qualified absence, the employee is entitled to return to the same position or an alternate position with equivalent pay, benefits, and working conditions, and without loss of accrued seniority.” Hodgens, 144 F.3d at 159 (citing 29 U.S.C. § 2614(a)(1); 29 C.F.R. §§ 825.100(c) (1997)). “In addition to creating the above entitlements, the FMLA provides protection in the event an employee is discriminated against for exercising those rights.” Id. at 159-160 (citing 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. § 825.220 (1997)). Employers are also specifically prohibited from using the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. See 29 C.F.R. § 825.220(c). “An employer who flouts these rules can be held liable for compensatory damages and, unless the violation occurred in good faith, additional liquidated damages.... Appropriate equitable relief, such as reinstatement, also may be available.” Navarro v. Pfizer Corp., 261 F.3d 90, 95 (1st Cir.2001) (internal citations omitted). In her complaint, Plaintiff alleges that the Defendant violated the FMLA by retaliating against her for exercising her rights under this statute. See Docket No. 6 at ¶ 14. In their motion for summary judgment, the Defendant argues that Plaintiff was allowed to take leave of absences, and upon return, with the exception of her last medical leave with the SIF, she was assigned the same position, responsibilities and duties. The Defendant also argues that the Plaintiff suffered no adverse employment" }, { "docid": "14804167", "title": "", "text": "her supervisor by April 28, 2004.” The CAR stated that the next action taken if the FMLA forms were not completed would be to place Rid-ings on suspension for three days without pay. If she returned to work after the suspension without presenting the FMLA paperwork to Hansen, then she could be terminated. Ridings signed the CAR, objecting to the disciplinary process. On May 10, 2004, Hansen provided a third CAR to Ridings. At that time, Rid-ings was suspended for three days without pay because she “did not turn in FMLA paperwork requesting intermittent leave by April 28, 2004.” The CAR identified the next action that would be taken: “Upon returning to work after the suspension, if the FMLA paperwork is not presented then further action, up to and including termination may be taken.” Ridings signed the CAR, again objecting to the disciplinary process. On May 13, 2004, Ridings returned to work after her suspension without the completed FMLA paperwork, and Riverside terminated her employment. II. Analysis We review a district court’s grant of summary judgment de novo. South, 495 F.3d at 751. We view all facts and the reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id. Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)). A. FMLA Interference The FMLA entitles an eligible employee up to twelve work weeks of leave during a twelve-month period where the employee has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a). The FMLA also permits the employee to take leave intermittently or on a reduced schedule when medically necessary. Id. § 2612(b). Under the FMLA, it is unlawful for an employer to interfere with an employee’s attempt to exercise the rights established by the FMLA. Id. § 2615(a). An employee does not" }, { "docid": "19885531", "title": "", "text": "problematic status quo. It could have shifted some of the bookkeeper’s job duties to other employees during the time that Ms. Lewis was taking FMLA leave. It could have hired part-time help for the bookkeeper position. It also could have transferred Ms. Lewis to another position (such as a teacher’s assistant position) temporarily if she was unable to fulfill the essential functions of her job while taking intermittent FMLA leave. 29 U.S.C. § 2612(b)(2). The District declined to exercise any of these options. In short, we believe that a jury would be entitled to conclude that the school board and the superintendent held Ms. Lewis to the unrealistic expectation that she should accomplish satisfactorily all of the duties of the bookkeeper position during her period of FMLA-protected intermittent leave. The imposition of such unrealistic expectations, if accepted by the jury, would be relevant and probative evidence of a retaliatory intent. Finally, we believe that a reasonable jury could conclude that the actions of the District at the time of her dismissal from the bookkeeper position provide circumstantial proof of retaliatory motive. In addition to the evidence that she was demoted permanently during the time period in which she was taking intermittent FMLA leave, Ms. Lewis also produced evidence that the school board had failed to follow its own procedures in demoting her, a circumstance that, if true, could suggest a discriminatory motivation. See Rudin, 420 F.3d at 723. Additionally, she presented evidence that the board may have tampered with audio recordings of meetings at which her employment was discussed, evidence that we have consid ered to be probative of pretext or improper motivation on other occasions. See Ogborn v. United Food & Commercial Workers Union, 305 F.3d 763, 769 (7th Cir.2002) (noting that evidence of tampering may be evidence of pretext, although ultimately denying the claim on other grounds). In the aggregate, such direct and circumstantial evidence is sufficient under the direct method of proof to survive summary judgment on her FMLA claim. The district court took the view that the record contained ample evidence of performance-related problems that justified" }, { "docid": "20764943", "title": "", "text": "that she was unable to perform the job, and thus was terminated by the College. We have also reviewed the district court’s denial of Hatchett s motion to alter or amend the judgment and find no error in that ruling. Conclusion The undisputed evidence demonstrates that Hatchett was unable to perform the essential functions of the job of Business Manager and, therefore, she is not a qualified individual entitled to ADA protection. Hatchett has also failed to demonstrate entitlement to intermittent or reduced schedule leave. Accordingly, we affirm the district court’s grant of summary judgment for the College and Titus and the denial of Hatchett’s motion to alter or amend. . The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas, Western Division. . Hatchett does not appeal the dismissal of her ADEA, Title VII or state law claims. . For purposes of this appeal, the Court assumes as true that Hatchett specifically requested accommodations. . Hatchett also claims that she requested a \"work-hardening” program as an accommodation. However, a reasonable accommodation allows the employee to perform the essential functions of the job while at work. Hatchett does not demonstrate that the \"work-hardening” accommodation would accomplish this purpose. Hatchett also claims that intermittent FMLA leave is per se reasonable. Again, this argument fails because Hatchett does not provide any evidence that she could perform the essential functions of the job while at work. Even intermittent FMLA leave does not excuse an employee from the essential functions of the job. In addition, the regulations regarding FMLA clearly state that \"the leave provisions of the [FMLA] are wholly distinct from the reason- . able accommodation obligations of employers covered under the [ADA].” 29 C.F.R. § 825.702(a). . Hatchett, in her failure to hire argument, points to the College's failure to hire her in 1995, when the Dean of Administrative Services position was first advertised. This time is prior to the accident for which she now claims disability and is thus irrelevant to our inquiry. . In Reynolds v. Phillips & Temro Industries, Inc., we noted the" }, { "docid": "20764939", "title": "", "text": "to “work-harden” on a reduced schedule, gradually working up to full-time. We hold that the legislative history of the FMLA and the statute’s restoration provisions demonstrate that an employee who could not otherwise perform the essential functions of her job, apart from the inability to work a full-time schedule, is not entitled to intermittent or reduced schedule leave. The FMLA was enacted in the wake of increasing struggle between work and family life. To help ease the growing tension between work and family, the FMLA establishes a right to unpaid family and medical leave for those employees covered under the Act. S. Rep. 103-3 at p. 4, U.S.Code Cong. & Admin.News 1993, 3, 6. Specifically, the FMLA entitles an eligible employee to twelve (12) weeks leave for one of the articulated medical conditions, one of which is the employee’s own serious medical condition. 29 U.S.C. § 2612(a)(1). In addition to full-time leave, an employee may take intermittent or part-time leave when medically necessary. 29 U.S.C. § 2612(b)(1). The purpose of the FMLA is to allow an employee to be away from the job, as opposed to using the statute as a means to force an employer to be directly involved in an employee’s rehabilitation. For example, an employee’s inability to work may be due to a required absence for chemotherapy. While the employee is receiving treatment and is away from his or her job, the employee is unable to perform the functions of his or her job and is entitled to leave under the FMLA. S. Rep. 103-3 at p. 23. However, while the employee is at his or her job, the employee must be able to perform the essential functions of the job. Similarly, the legislative history addresses a situation involving an employee who is recovering from a serious health condition and is able to return to work, but must periodically leave work for continued medical supervision. In such a situation, the employee is deemed to be temporarily unable to perform the functions of the job when away from work to receive the continued medical supervision, thus entitling that" }, { "docid": "11377490", "title": "", "text": "performance. As to the claimed un-noticed absences, defendant’s representatives all testified that they had no problem with plaintiff leaving for doctor’s appointments, but just that he had to provide advance notice, see Caceres Aff. ¶ 6; Petito Aff. ¶ 7; Petito Dep. at 43-44, and plaintiff testified that he always contacted his supervisors when he -yvas going to be out (for a doctor’s appointment or for sick leave) and provided doctor’s notes, see Dupee Dep. at 61-62, 64, 112. Thus, the issues of whether plaintiff had unnoticed absences and whether defendant terminated him for this reason also remain in dispute to be resolved at trial. Accordingly, defendant’s motion for summary judgment on Count 1 will be denied. B. FMLA (Count 2) Count 2 claims defendant violated the FMLA by terminating plaintiff for exercising his right to take FMLA leave on an intermittent basis and by failing to inform him of his FMLA leave entitlement after his accident. The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: ... Because of a serious heath condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1). The Act further provides that for such a condition “leave ... may be taken intermittently or on a reduced leave schedule when medically necessary.” Id. § 2612(b)(1); accord 29 C.F.R. § 825.203. Regulations- promulgated under the Act define “intermittent leave” as “FMLA leave taken in separate blocks of time due to a single qualifying reason.... There is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave sched ule.” 29 C.F.R. § 825.203(a), (d). The Act provides that “[i]t shall be unlawful for any employer to interfere with, retrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1); accord 29 C.F.R. § 825.220(a). A claim that an employee was “punished” or retaliated against for exercising" }, { "docid": "14804168", "title": "", "text": "judgment de novo. South, 495 F.3d at 751. We view all facts and the reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Id. Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)). A. FMLA Interference The FMLA entitles an eligible employee up to twelve work weeks of leave during a twelve-month period where the employee has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a). The FMLA also permits the employee to take leave intermittently or on a reduced schedule when medically necessary. Id. § 2612(b). Under the FMLA, it is unlawful for an employer to interfere with an employee’s attempt to exercise the rights established by the FMLA. Id. § 2615(a). An employee does not need to be aware of her rights in order to invoke them; “[t]he employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” 29 C.F.R. § 825.303(b). To prevail on an FMLA interference claim, an employee must show that her employer deprived her of an FMLA entitlement. Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.2006). The employee must establish that: (1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she provided sufficient notice of her intent to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Id. We address each of the parties’ arguments: that the district court failed to acknowledge Riverside’s factual admission, that Ridings failed to invoke her FMLA rights, that Riverside failed to responsively answer her questions about FMLA certification, that Riverside was attempting to force Ridings to take intermittent leave, that Riverside never requested" } ]

[ { "docid": "2071390", "title": "", "text": "(e) provides that, “[f]or the purposes of this section, in determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” These provisions have been construed as adopting common law standards of agency. Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 217, 100 S.Ct. 410, 414, 62 L.Ed.2d 394 (1979); Aguirre v. Automotive Teamsters, 633 F.2d 168, 171 (9th Cir.1980). “[T]he purpose of these provisions was merely to apply the ordinary rules of the law of agency to labor organizations, notwithstanding resolutions on their part disclaiming responsibility for the action of persons who, in reality, are acting in their behalf.” United Construction Workers v. Haislip Baking Co., 223 F.2d 872, 878 (4th Cir.), cert. denied, 350 U.S. 847, 76 S.Ct. 87, 100 L.Ed. 754 (1955). With respect to agency and apparent authority, we have held that common law principles are not to be applied rigidly. Further, [t]he question whether an employee is an agent is a question of fact____ An employee's conduct may also be attributed to the union if the objector can demonstrate that the union has clothed the employee with apparent authority to act on behalf of the union____ At the mini- mum, the party seeking to hold the Union responsible for an employee’s conduct based upon the theory of apparent authority must show that the union cloaked the employee with sufficient authority to create a perception among the rank-and-file that the employee acts on the behalf of the union ... and that the union did not disavow or repudiate the employee’s statements or actions. Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 355 (6th Cir.1983). See Consolidation Coal Co. v. UMW, 725 F.2d 1258, 1262-63 (10th Cir.1984); Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1295 (9th Cir.), cert. denied, 459 U.S. 990, 103 S.Ct. 346, 74 L.Ed.2d 386 (1982) (“A finding that one person is another’s agent is generally reviewed as a question of" } ]

[ { "docid": "2108965", "title": "", "text": "from seeking contributions under the agreements. The court held for the plaintiff funds, stating that “[t]he estoppel defense fails because [the defendant] had knowledge about the plans and its obligations thereunder, and did not reasonably rely on [the union representative’s] representations.” Teamster’s Local 348, 749 F.2d at 319; see also Sprague v. General Motors Corp., 133 F.3d 388, 404 (6th Cir.) (en banc), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998) (“[Reliance can seldom, if ever, be reasonable or justifiable if it is inconsistent with the clear and unambiguous terms of plan documents available to or furnished to the party.”). Similarly, the defendants here either were or should have been aware of their obligations under the written agreements, if by no other means than the first, successful recovery action against them. They cannot claim justifiable reliance on the equivocal statements and ensuing delay of an auditor in attempting to escape their responsibilities now. The lack of soundness in the district court’s estoppel analysis is epitomized by its holding that the plaintiffs should be estopped from enforcing the agreements from the time of the 1991 judgment onward. Even if Aldrich’s conduct could be said to estop plaintiffs from enforcing the agreements after Aldrich’s communications with William Gibbons in April 1994, it should be obvious that the plaintiffs could not be estopped from collecting unpaid contributions for the period before the Aldrieh-Gibbons conversation, from September 1990 to April 1994. As we have previously indicated, the agreements clearly directed the defendants to make monthly payments into the Funds. The 1991 judgment itself should have put the plaintiffs on notice as to their obligations to the Funds. See Michigan Laborers’ Health Care Fund v. Grimaldi Concrete, Inc., 30 F.3d 692, 695 (6th Cir.1994). The record is utterly devoid of any evidence that the plaintiffs engaged in conduct at the time of the 1991 default judgment that could work to misrepresent defendants’ duties to continue making payments. The mere fact of the plaintiffs’ silence between the judgment and April 1994, without more, cannot be grounds for estoppel. See Watkins v. Northwestern" }, { "docid": "16534717", "title": "", "text": "Cir.1992). But such an obligation “is not to be inferred lightly.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., U.A.W. v. Skinner Engine Co., 188 F.3d 130, 139 (3d Cir.1999). The First Circuit has instructed district courts that the “resolution of questions concerning employer obligations under such plans must be tailored to avoid undermining Congress’ considered decision that welfare benefit plans not be subject to a vesting requirement.” Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (quotation marks omitted). In addition, several circuits require that employers agree to vested benefits in writing as part of the plan documents. See Sprague v. Gen. Motors Corp., 133 F.3d 388, 400 (6th Cir.1998) (collecting cases), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). With these principles in mind, the Court examines the facts of this case. Count II of the amended complaint alleges that the plaintiffs “were entitled under the terms of the Commonwealth Pension Plan to the level of retiree medical care that they received at the time of their retirement for the rest of their life.” It is undisputed, however, that the terms of the Commonwealth Pension Plan explicitly excluded health care coverage. Simply put, the plaintiffs have failed to identify any provision of the Commonwealth Pension Plan that provides vested lifetime health insurance coverage. The plaintiffs also claim as part of Count II that the PRP entitles them to a lifetime of vested health benefits. The PRP was a document that Commonwealth distributed to employees in 1997 when it decided to reduce its workforce. The PRP contained a section regarding health and dental care. This section defined eligibility criteria for participation in the company’s health benefits program. The plaintiffs claim that the eligibility requirements contained in the PRP amounted to promises of vested post-retirement health benefits. The crux of NSTAR’s defense is that the eligibility requirements established by the PRP did not amount to vested post-retirement health benefits. It is clear that defining the eligibility requirements for participation in a retiree welfare benefits plan is not the same as granting vested" }, { "docid": "17554636", "title": "", "text": "defendants on plaintiffs’ breach of fiduciary duty claims. B. Plaintiffs also argue that defendants breached their contractual duties under ERISA. The district court correctly held that plaintiffs cannot succeed on their contract-based ERISA claims because their welfare benefits were not vested at the time of their retirement. While ERISA requires pension benefits to vest upon employees’ retirement, welfare benefits do not automatically vest. See 29 U.S.C. § 1051(1) (excluding welfare benefit plans from ERISA’s vesting provisions); Helwig v. Kelsey-Hayes Co., 93 F.3d 243, 248 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 690, 136 L.Ed.2d 613 (1997). However, employers may choose to vest welfare benefits by entering into a private agreement with their employees that is set forth in the plan documents. See Inter-Modal Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 117 S.Ct. 1513, 1516, 137 L.Ed.2d 763 (1997); Sprague, et al. v. General Motors Corp., 133 F.3d 388, 400 (6th Cir.) (en banc), cert. denied, — U.S. -, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). Because vested benefits are forever unalterable, and because employers are not legally required to vest them, this Court recently held that “the intent to vest [welfare benefits] ‘must be found in the plan documents and must be stated in clear and express language.’ ” Id. (quoting Wise v. El Paso Natural Gas Co., 986 F.2d 929, 937 (5th Cir.1993)). Plaintiffs bear the burden of proving that BFG intended to vest their benefits. See id. The district court correctly found that the plan documents in this case do not express a clear and affirmative intent to vest employees’ welfare benefits. Regardless of whether the reservation of rights clause in the “Highlights” booklet may properly be considered part of the SPDs, there is simply no language in the SPDs themselves that clearly expresses an intention to vest the benefits. Plaintiffs point to statements such as “if you retire and are eligible for a pension you shall continue to have the same health coverage,” found in the 1977 Hospitalization Plan SPD, and argue that the language suggests an intent" }, { "docid": "22187009", "title": "", "text": "1998, deadline. The district court concluded that Marks could not prevail on an estoppel theory as a matter of law, because estoppel would “contravene the terms of the plan documents,” which “unambiguously require that plaintiff have experienced a qualifying termination prior to October 1, 1998.” J.A. at 1024(Op.). This court has recognized that “equitable estoppel may be a viable theory in ERISA cases.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 403 (6th Cir.) (en banc), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). To set forth a claim for equitable estoppel in the ERISA context, a plaintiff must plead five elements: (l)[T]here must be conduct or language amounting to a representation of material fact; (2) the party to be estopped must be aware of the true facts; (3) the party to be estopped must intend that the representation be acted on, or the party asserting the estoppel must reasonably believe that the party to be estopped so intends; (4) the party asserting the estoppel must be unaware of the true facts; and (5) the party asserting the estoppel must reasonably or justifiably rely on the representation to his detriment. Id. Liberally construed, Marks’s complaint alleges each of the five required elements. A party cannot seek to estop the application of an unambiguous written provision in an ERISA plan, however. Id. at 404. When a party seeks to estop the application of an unambiguous plan provision, he by necessity argues that he reasonably and justifiably relied on a representation that was inconsistent with the clear terms of the plan. Id. Moreover, “to allow estoppel to override the clear terms of plan documents would be to enforce something other than the plan documents themselves.” Id. In this case, the plan provision requiring that a participant assert his rights by October 1,1998, is unambiguous. Therefore Marks cannot rely on an estoppel theory, and the district court did not err in dismissing the argument. III. JUDGMENT AGAINST MARKS A. ERISA § 502: Challenging the Denial of Plan Benefits ■ The district court concluded that Marks’s claim for breach of" }, { "docid": "11658493", "title": "", "text": "confirmed the plan, reasoning that it is not per se bad faith to file successive petitions under Chapter 7 and Chapter 13, and applying the suggested factors from Flygare v. Boulden, 709 F.2d 1344 (10th Cir.1983). The district court affirmed the bankruptcy court’s confirmation of the Chapter 13 plan. Pioneer appeals. For the reasons set forth below, we reverse. We are bound by the factual findings of the bankruptcy court unless they are clearly erroneous. The legal conclusions of the bankruptcy court and the district court are subject to de novo review on appeal. Rowe Int’l, Inc. v. Herd (In re Herd), 840 F.2d 757, 759 (10th Cir.1988); Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel), 798 F.2d 396, 399-400 (10th Cir.1986). Chapter 13 of the Bankruptcy Code is a liberal provision which allows discharge of all debts except those defined by 11 U.S.C. § 1322(b)(5) (cure of default on long-term debt when final payment is due after proposed final payment under Chapter 13 plan) and 11 U.S.C. § 523(a)(5) (alimony and child support). 11 U.S.C. § 1328(a). However, the plan may only be confirmed if it is proposed in good faith. 11 U.S.C. § 1325(a)(3). Neither the bankruptcy code itself nor its legislative history defines the term “good faith,” and definition of the term in the context of successive filings has evolved through case decisions since the 1984 amendments to the code. This circuit has rejected a per se bad faith standard, holding instead that bad faith is to be judged by the totality of the circumstances on a case by case basis. Flygare v. Boulden, 709 F.2d 1344 (10th Cir.1983). In Flygare, the court set forth eleven factors to be considered, among other relevant circumstances, in determining whether the Chapter 13 plan was filed in good faith. Other circuits have rejected a per se bad faith standard in favor of a “totality of circumstances” approach. See State of Ohio, Student Loan Comm ’n v. Doersam (In re Doersam), 849 F.2d 237, 239 (6th Cir.1988); In re Hines, 723 F.2d 333, 334 (3d Cir.1983);" }, { "docid": "22187008", "title": "", "text": "allegations that the employee was misled about the nature of his duties and responsibilities: “On the facts presented, the most [the employee] can allege is that she was misled about her duties and responsibilities. This allegation does not give rise to a claim for ‘interference’ or ‘discrimination’ under § 510.” Donnelly v. Bank of N.Y. Co., 801 F.Supp. 1247, 1255 (S.D.N.Y.1992), aff'd, 2 F.3d 403 (2d Cir. July 2, 1993). This is precisely what Marks alleges in this case. Thus, construing Marks’s complaint in the light most favorable to him, we conclude that Marks failed to state a prima facie case under § 510. Because he fails to allege conduct that would fall within the scope of § 510’s prohibitions, we affirm the district court’s decision to dismiss this claim. 3. Equitable Estoppel Marks argues that because Newcourt fraudulently represented to him that his job duties had not been reduced throughout 1998, and therefore lulled him into not exercising his rights under the plan, Newc-ourt should be estopped from relying on the plan’s October 1, 1998, deadline. The district court concluded that Marks could not prevail on an estoppel theory as a matter of law, because estoppel would “contravene the terms of the plan documents,” which “unambiguously require that plaintiff have experienced a qualifying termination prior to October 1, 1998.” J.A. at 1024(Op.). This court has recognized that “equitable estoppel may be a viable theory in ERISA cases.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 403 (6th Cir.) (en banc), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). To set forth a claim for equitable estoppel in the ERISA context, a plaintiff must plead five elements: (l)[T]here must be conduct or language amounting to a representation of material fact; (2) the party to be estopped must be aware of the true facts; (3) the party to be estopped must intend that the representation be acted on, or the party asserting the estoppel must reasonably believe that the party to be estopped so intends; (4) the party asserting the estoppel must be unaware of the true" }, { "docid": "11015629", "title": "", "text": "fraudulent statements about the nature of a benefits plan itself are preempted by ERISA. See, e.g., Olson v. General Dynamics Corp., 960 F.2d 1418, 1422-23 (9th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2968, 119 L.Ed.2d 588 (1992) (claim challenging oral misrepresentation regarding the level of benefits provided by a plan is preempted); Davidian v. Southern California Meat Cutters Union, 859 F.2d 134, 135 (9th Cir.1988) (claim against incorrect description of the insurance benefits of an ERISA plan is preempted). Other circuits agree. Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992) (claim based upon an employer’s misrepresentations regarding the terms of a plan itself is preempted); Consolidated Beef Industries, Inc. v. New York Life Ins. Co., 949 F.2d 960, 964 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992) (state law claims for misrepresentation in plan billings, interest rates, and annual statements are preempted); Degan v. Ford Motor Co., 869 F.2d 889, 894-95 (5th Cir.1989) (claim for breach of an oral agreement to pay early retirement benefits is preempted); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987) (claim challenging failure to disclose the terms of a benefit plan is preempted). Our holding today is not at odds with these cases because each involved fraud in the description of the plan itself. By contrast, the actions of US West officials involved allegedly fraudulent tax advice regarding lump sum distributions, not misrepresentations about the plan itself or benefits due. This analysis is buttressed by other case law. We have noted that a plaintiffs claim is generally not preempted if the employer had “any duty to her outside the proper administration of the benefit plan.” Gibson v. Prudential Ins. Co. of America, 915 F.2d 414, 417 (9th Cir.1990). In Gibson, we found that the plaintiff could not allege the existence of such a duty because “[tjhere would be no relationship or cause of action between the appellees" }, { "docid": "22187028", "title": "", "text": "district court erred by including McFarlane’s electronic mail in the administrative record, we AFFIRM the district court’s judgment on all other grounds. . The plan requires written notification of the denial of benefits. The notice must include a specific reason for the denial, refer to pertinent plan provisions on which the denial was based, describe any additional material necessary to perfect a participant’s claim, and explain why the requirements are necessary. . Even if Marks could bring a breach-of-fiduciary-duty claim, we have recognized such claims only where the misrepresentation in question involves the availability or extent of plan benefits. See James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 455 (6th Cir.2002) (considering \"materially misleading and inaccurate information about the plan benefits”); Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir.1999) (describing breaches where administrator answers questions inaccurately or incompletely, or where administrator negligently or intentionally misleads plan participants about plan eligibility or benefits); Sprague v. Gen. Motors Corp., 133 F.3d 388, 405-06 (6th Cir.) (en banc) (suggesting that breach can occur where employer provides misleading information about the future of a plan or fails to provide such information when required to do so), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). In this case, Marks inquired about his duties and compensation, not about a matter of plan administration. Although Marks argues that his duties and compensation were a matter of plan administration because his employment status determined his benefits, we have not recognized this kind of misrepresentation in the context of § 404. Furthermore, we have only recognized § 404 claims when a plan administrator, or an employer \"exercising ‘discretionary authority' in connection with the plan's ‘management’ or 'administration' ” misrepresents a material fact. Sprague, 133 F.3d at 405 (citing Varity Corp. v. Howe, 516 U.S. 489, 502-04, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). Marks’s employer allegedly misled him about reductions in his duties and compensation. In doing so, Newcourt did not exercise discretion in connection with plan management or administration; Newcourt was discussing Marks's duties as an employee. Therefore, even if" }, { "docid": "2108964", "title": "", "text": "made other fringe benefit arrangements for their employees after the 1991 judgment, and that to have to pay monies into the Funds now would work a detrimental change in position. But this purported rebanee on plaintiffs’ conduct, in the face of the explicit terms of the agreements establishing the defendants’ duty to make monthly payments to the Funds, simply cannot be described as justifiable. The defendants could reasonably have had no more than a mere hope that Dawn Aldrich’s conduct, including her 1994 statements and ensuing delay in attempting to schedule an audit, meant that the plaintiffs were not going to enforce the defendants’ duty to make the monthly payments. These facts resemble those at issue in Teamster’s Local 34-8, in which a union representative told non-union employees of the defendant employer that they would not be eligible for benefits from fringe benefit funds established by prior collective bargaining agreements. The defendant claimed that, because they relied on the union representative’s statements and provided alternative benefits to the nonunion employees, the funds should be es-topped from seeking contributions under the agreements. The court held for the plaintiff funds, stating that “[t]he estoppel defense fails because [the defendant] had knowledge about the plans and its obligations thereunder, and did not reasonably rely on [the union representative’s] representations.” Teamster’s Local 348, 749 F.2d at 319; see also Sprague v. General Motors Corp., 133 F.3d 388, 404 (6th Cir.) (en banc), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998) (“[Reliance can seldom, if ever, be reasonable or justifiable if it is inconsistent with the clear and unambiguous terms of plan documents available to or furnished to the party.”). Similarly, the defendants here either were or should have been aware of their obligations under the written agreements, if by no other means than the first, successful recovery action against them. They cannot claim justifiable reliance on the equivocal statements and ensuing delay of an auditor in attempting to escape their responsibilities now. The lack of soundness in the district court’s estoppel analysis is epitomized by its holding that the plaintiffs" }, { "docid": "4063970", "title": "", "text": "The district court construed Bloemker’s complaint as stating a claim for federal common law equitable estoppel. We have recognized that “equitable estoppel may be a viable theory in ERISA cases,” and have treated promissory estoppel in the same way. Sprague v. Gen. Motors Corp., 133 F.3d 388, 403-04, 403 n. 13 (6th Cir.1998) (en banc). Yet we have not previously recognized equitable estoppel as a viable claim in the pension benefit — as opposed to the welfare benefit-context. See id. at 403 (citing Armistead v. Vernitron Corp., 944 F.2d 1287, 1298 (6th Cir.1991)). Our reluctance to extend estoppel has been based on the following observation from Armistead: [P]ension benefits are typically paid out of funds to which both employers and employees contribute. Contributions and pay-outs are determined by actuarial assumptions reflected in the terms of the plan. If the effective terms of the plan may be altered by transactions between officers of the plan and individual plan participants or discrete groups of them, the rights and legitimate expectations of third parties to retirement income may be prejudiced. 944 F.2d at 1300. Following a number of other circuits, we now conclude that this interest is not sufficiently weighty to defeat estoppel claims in pension cases where the representation was made in writing and where the plaintiff can demonstrate extraordinary circumstances. The Seventh Circuit has applied its ERISA estoppel rules, which include a written representation requirement, to a case involving a pension. Kannapien v. Quaker Oats Co., 507 F.3d 629, 636 (7th Cir.2007). The Seventh Circuit has also recently explained the importance — both in terms of the statutory language and in terms of ERISA policy — of requiring ERISA estoppel plaintiffs to rely on writ ten promises. It first noted that “ERISA plans must be ‘maintained pursuant to a written instrument.’ ” Orth v. Wis. State Employees Union, Council 2L 546 F.3d 868, 872 (7th Cir.2008) (quoting 29 U.S.C. § 1102(a)(1)). The court then explained that its previous precedents had established that the “main objection,” in policy-terms, to oral modifications of ERISA plans “is that they would enable the plan’s integrity," }, { "docid": "15637131", "title": "", "text": "otherwise, the SPD itself would have to be summarized (in circular fashion). Importantly, although it is not part of the plan itself, an SPD, being a required ERISA document, is a “plan document,” see Barker v. Ceridian Corp., 122 F.3d 628, 633 (8th Cir.1997); Jensen v. SIPCO, Inc., 38 F.3d 945, 949 (8th Cir.1994), cert. denied, 514 U.S. 1050, 115 S.Ct. 1428, 131 L.Ed.2d 310 (1995); Alday v. Container Corp. of America, 906 F.2d 660, 665 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991), the terms of which are traditionally construed alongside the terms used in an underlying ERISA plan to determine the parties’ rights and obligations thereunder. E.g., Sprague v. General Motors Corp., 133 F.3d 388, 402 (6th Cir.), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998); Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1098-99 (6th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1994); Edwards, 851 F.2d at 136; Bryant, 793 F.2d at 123. For example, the Sixth Circuit has looked to SPDs in other instances in finding that an employer retained the right to amend or terminate an ERISA plan, Sprague, 133 F.3d at 401, and, as in this case, to determine whether an insurer retained discretionary authority to deny insurance bene fits. See Tierneyer, 8 F.3d at 1098-99 (affirming district court’s conclusion that the SPD therein did not confer discretionary authority to determine benefits coverage). Furthermore, the SPD language at issue is not in conflict with the underlying Plan, which contained the following “uniform provisions”: WRITTEN PROOF OF LOSS. Written proof of loss must be furnished to Us [CNA] within 90 days after the end of a period for which We [CNA] are liable. If it is not possible to give the proof within 90 days, the claim is not affected if the proof is given as soon as reasonably possible. Unless You [the insured] are legally incapacitated, written proof must be given within 1 year of the time it is otherwise due. TIME OF PAYMENT OF CLAIM. Benefits will" }, { "docid": "15637130", "title": "", "text": "Willis was provided with a single booklet, the first 23 pages of which were a copy of the Plan, and the final four pages of which were what was denominated the SPD. (AR at 015-033.) The relevant language in the SPD expressly put Willis on notice that CNA, as a fiduciary, had the right to determine her entitlement to benefits. The statement that the SPD “does not constitute part of the Plan” merely expressed an implied truism, and in no manner can it be said that it materially affected Willis’ rights under the Plan itself. As noted, ERISA requires that a plan administrator furnish to each participating employee such an SPD. By its very definition, a “summary plan description” is not part of the plan itself; it is no more than what its title makes it out to be: a summary of a separate, free-standing Plan. See Bryant v. International Fruit Prods. Co., Inc., 793 F.2d 118, 123 (6th Cir.), cert. denied, 479 U.S. 986, 107 S.Ct. 576, 93 L.Ed.2d 579 (1986). Were it construed otherwise, the SPD itself would have to be summarized (in circular fashion). Importantly, although it is not part of the plan itself, an SPD, being a required ERISA document, is a “plan document,” see Barker v. Ceridian Corp., 122 F.3d 628, 633 (8th Cir.1997); Jensen v. SIPCO, Inc., 38 F.3d 945, 949 (8th Cir.1994), cert. denied, 514 U.S. 1050, 115 S.Ct. 1428, 131 L.Ed.2d 310 (1995); Alday v. Container Corp. of America, 906 F.2d 660, 665 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 675, 112 L.Ed.2d 668 (1991), the terms of which are traditionally construed alongside the terms used in an underlying ERISA plan to determine the parties’ rights and obligations thereunder. E.g., Sprague v. General Motors Corp., 133 F.3d 388, 402 (6th Cir.), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998); Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1098-99 (6th Cir.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1994); Edwards, 851 F.2d at 136; Bryant, 793 F.2d at 123. For example, the" }, { "docid": "16534716", "title": "", "text": "Count II of the amended complaint does not allege that NSTAR violated the Master Medical, Medex or dental benefit plans themselves. Rather, the amended complaint alleges that NSTAR violated the Commonwealth Pension Plan and a second document entitled “Personnel Reduction Program” (“PRP”). Both the Commonwealth Pension Plan and PRP are considered “welfare benefit plans” under ERISA, and therefore are not subject to the “stringent vesting, participation and funding requirements” imposed by ERISA on pension benefit plans. RodriguezAbreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 585 (1st Cir.1993). In fact, “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995). This does not mean, however, that such plans can never vest. It is certainly possi ble for an employer to “oblige itself contractually to maintain benefits at a certain level in ways that are not mandated by ERISA.” Vasseur v. Halliburton Co., 950 F.2d 1002, 1006 (5th Cir.1992). But such an obligation “is not to be inferred lightly.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., U.A.W. v. Skinner Engine Co., 188 F.3d 130, 139 (3d Cir.1999). The First Circuit has instructed district courts that the “resolution of questions concerning employer obligations under such plans must be tailored to avoid undermining Congress’ considered decision that welfare benefit plans not be subject to a vesting requirement.” Allen v. Adage, Inc., 967 F.2d 695, 698 (1st Cir.1992) (quotation marks omitted). In addition, several circuits require that employers agree to vested benefits in writing as part of the plan documents. See Sprague v. Gen. Motors Corp., 133 F.3d 388, 400 (6th Cir.1998) (collecting cases), cert. denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). With these principles in mind, the Court examines the facts of this case. Count II of the amended complaint alleges that the plaintiffs “were entitled under the terms of the Commonwealth Pension Plan to the level of retiree medical care that they received at the time" }, { "docid": "12459580", "title": "", "text": "the district court erred in reversing the bankruptcy court finding that Isaac’s bonus was earned for services performed throughout his first year and that, as a result, only a portion of the bonus was entitled to priority as an administrative expense under section 503(b)(1)(A). Amarex seeks to have the bankruptcy court decision affirmed. Isaac argues that the district court correctly interpreted the employment contract as a matter of law, and, to the extent it reviewed any factual findings of the bankruptcy court, it correctly applied the clearly erroneous rule. He further argues that “the District Court properly determined that the entire bonus was due Isaac as a priority payment based upon the debtor-in-possession’s agreement under the Operating Order to allow Isaac to continue his employment with the debtor-in-possession at the same rate of compensation as provided in the contract.” Brief of Appellee at 6. DISCUSSION Interpretation of an unambiguous contract is a question of law and is therefore reviewable de novo on appeal. See NRM Corp. v. Hercules, Inc., 758 F.2d 676, 682 (D.C.Cir.1985); Paragon Resources, Inc. v. Nat’l Fuel Gas Distrib. Corp., 695 F.2d 991, 995 (5th Cir.1983); Jaeco Pump Co. v. Inject-O-Meter Mfg. Co., 467 F.2d 317, 320 (10th Cir.1972); see also Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel, Inc.), 798 F.2d 396, 399-400 (10th Cir.1986) (questions of law in bankruptcy context reviewable de novo). The determination of ambiguity of a contract is similarly a question of law. See Metro. Paving Co. v. City of Aurora, 449 F.2d 177, 181 (10th Cir.1971). Only in the event of ambiguity does a court resort to extrinsic evidence. Paragon Resources, 695 F.2d at 995; Metro. Paving, 449 F.2d at 181. To the extent the bankruptcy court made any factual findings in interpreting the contract, such findings are subject to the clearly erroneous standard of appellate review, both by the district court and by this court. Branding Iron Motel, Inc., 798 F.2d at 399; In Re White House Decorating Co., Inc., 607 F.2d 907, 910 (10th Cir.1979); Bankr. Rule 8013; see also Haskins v. United States" }, { "docid": "17554635", "title": "", "text": "the same position after the transfer that they were in when the BFG plans still covered them. In fact, from 1990 until 1995, plaintiffs and their fellow transferred retirees were in better positions than their former colleagues still under the BFG plans. Miehelin recently made a contribution to the retirees’ pension fund that now makes their pensions fully-funded. Nothing in the record suggests that Miehelin will ultimately be a less stable or secure sponsor of the retirees’ benefit plans than BFG. The record simply does not support a finding that BFG so abused its discretion in implementing the spin-off transaction as to justify the Court’s substitution of its judgment for that of the company. Plaintiffs have failed to show that BFG acted in a fiduciary capacity when it transferred the liability for their welfare benefits to UGTC. Plaintiffs have further failed to establish any breach of fiduciary duties, even if such duties were deemed to apply to BFG’s conduct. For these reasons, we hold that the district court was correct in granting summary judgment to defendants on plaintiffs’ breach of fiduciary duty claims. B. Plaintiffs also argue that defendants breached their contractual duties under ERISA. The district court correctly held that plaintiffs cannot succeed on their contract-based ERISA claims because their welfare benefits were not vested at the time of their retirement. While ERISA requires pension benefits to vest upon employees’ retirement, welfare benefits do not automatically vest. See 29 U.S.C. § 1051(1) (excluding welfare benefit plans from ERISA’s vesting provisions); Helwig v. Kelsey-Hayes Co., 93 F.3d 243, 248 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 690, 136 L.Ed.2d 613 (1997). However, employers may choose to vest welfare benefits by entering into a private agreement with their employees that is set forth in the plan documents. See Inter-Modal Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 117 S.Ct. 1513, 1516, 137 L.Ed.2d 763 (1997); Sprague, et al. v. General Motors Corp., 133 F.3d 388, 400 (6th Cir.) (en banc), cert. denied, — U.S. -, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998). Because" }, { "docid": "21097589", "title": "", "text": "the Court doubts that Plaintiffs' claims are typical of the class. See Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340-41 (4th Cir. 1998); Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir.), cert, denied, 524 U.S. 923, 118 S.Ct. 2312, 141 L.Ed.2d 170 (1998); Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 597 (7th Cir. 1993). As the Sixth Circuit has noted, ”[t]he premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class. That premise is not valid here.\" Sprague, 133 F.3d at 399. Similarly, that premise does not fit the instant case. For the same reasons, the Court is further concerned whether Plaintiff would adequately represent the interests of the class. The adequacy of representation prong has two elements: adequacy of counsel and avoiding conflicts of interest between the named parties and the class. See Retired Chicago Police Ass’n, 7 F.3d at 598; 1 Newberg and Conte § 3.13 at p. 3-73. \"If the plaintiffs fail to satisfy the typicality test, the plaintiffs also will not be adequate representatives under at least the second prong of the test.” 1 Newberg and Conte § 3.13 at p. 3-73. Although the Court has no doubts about the competency of Plaintiff's counsel, Plaintiff simply cannot adequately represent members of a class with whom he has material factual and legal differences. . Defendants further argue that, because Rule 23(b)(1)(A) is designed primarily for the benefit of those opposing a class, they may defeat certifi catión under this provision simply by opposing it and waiving the protection of the Rule. It is generally accepted that Rule 23(b)(1)(A) protects interests of defendants by guarding against the risks attendant in adjudicating similar suits separately. See 5 Moore's Federal Practice, § 23.40; 1 Newberg and Conte, § 4.03, at p. 4-11. Additionally, there is some authority for the proposition that certification under this provision is never appropriate when the party opposing the class waives this protection and voluntarily accepts the risk of multiple adjudications. See 5" }, { "docid": "6703884", "title": "", "text": "the extent that it is reasonable for the third person dealing with the agent to believe that the agent is authorized. See generally Restatement (Second) of Agency §§ 8, 27 & cmts. thereto. Specifically, a party may rely upon the apparent authority of union representatives to enter into an agreement where there is basis for such reliance. National Labor Relations Bd. v. Truckdrivers, Chauffeurs and Helpers, Local Union No. 100, 532 F.2d 569 570-71 (6th Cir.1976). Because the record before us on this issue is limited, we remand for the district court to make further factual findings on whether principles of apparent authority can bind the union to the December 7, 1994 resolution. We leave it to the district court to decide if further discovery is necessary. Specifically, the district court should determine if union president McConville, as president of the union and a member of the Executive Board, and the Executive Board, were acting within their apparent or actual authority as representatives of the union’s retirement plan and whether plaintiffs reasonably relied upon this authority to enter into the agreement for early retirement benefits. Whether plaintiffs’ reliance was reasonable may turn, in part, on whether they were aware of the possible legal challenges to the December 7, 1994, resolution before they accepted the early retirement offer. We note that defendants contend that the failure of the full membership to ratify the resolution rendered it void because ratification is required by the union constitution and bylaws. Apparent authority, however, may attach even when the agent’s acts are unauthorized. Restatement (Second) § 159 & cmt. f. See, e.g., Richards v. General Motors Corp., 991 F.2d 1227, 1232 (6th Cir.1993) (employer contractually liable for ERISA benefits based on apparent authority of plan administrator). This circuit and others have repeatedly held that even in the presence of a ratification requirement, a third party may rely upon the apparent authority of the union representatives to enter into an agreement where there is a reasonable basis for such reliance. See, e.g., Central States Southeast and Southwest Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098," }, { "docid": "6703885", "title": "", "text": "authority to enter into the agreement for early retirement benefits. Whether plaintiffs’ reliance was reasonable may turn, in part, on whether they were aware of the possible legal challenges to the December 7, 1994, resolution before they accepted the early retirement offer. We note that defendants contend that the failure of the full membership to ratify the resolution rendered it void because ratification is required by the union constitution and bylaws. Apparent authority, however, may attach even when the agent’s acts are unauthorized. Restatement (Second) § 159 & cmt. f. See, e.g., Richards v. General Motors Corp., 991 F.2d 1227, 1232 (6th Cir.1993) (employer contractually liable for ERISA benefits based on apparent authority of plan administrator). This circuit and others have repeatedly held that even in the presence of a ratification requirement, a third party may rely upon the apparent authority of the union representatives to enter into an agreement where there is a reasonable basis for such reliance. See, e.g., Central States Southeast and Southwest Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1111-12 (6th Cir.1986) (side letter to collective bargaining agreement regarding pension payments was valid and binding on union even without required ratification); accord Kozera v. Westchester-Fairfield Chapter of Nat’l Elec. Contractors Ass’n, 909 F.2d 48, 54 (2d Cir.1990) (agreement not ratified by union membership as required was nevertheless binding on union under principle of apparent authority); Moreau v. James River-Otis, Inc., 767 F.2d 6, 9-10 (1st Cir.1985) (provision in union constitution that local union cannot bind international union without written consent did not prohibit finding of apparent authority). While the case law generally refers to the union’s relationship with a third party outside the union, usually an employer, the apparent authority principles are relevant to the situation here in defining the relationship between the union as a whole and the plaintiffs. The record amply demonstrates that the Executive Board and plaintiffs reached an agreement on December 8, 1994. On remand, the district court should determine whether plaintiffs knew or should have known about the ratification requirement and, if they did, what bearing that knowledge had" }, { "docid": "11500045", "title": "", "text": "§ 158(a) because it is an appeal from a final judgment and order of the bankruptcy court. The bankruptcy court’s order denied appellants’ motion for relief from the § 362 automatic stay. Courts have consistently held that orders granting or denying relief from an automatic stay are appealable final orders. See Eddleman v. United States Dept. of Labor, 923 F.2d 782, 784 (10th Cir.1991). The court also has jurisdiction over the cross-appeal in which appellee challenges the bankruptcy court’s ruling that the hotel revenues of the debtor are to be treated as cash collateral pursuant to § 363. Although the cash collateral ruling alone may not be considered a final order, see In re Wiston XXIV Ltd. Partnership, 147 B.R. 575, 578 (D.Kan.1992), appeal dismissed, 988 F.2d 1012 (10th Cir.1993), in bankruptcy proceedings an order is final when it disposes of a “ ‘particular adversary proceeding or discrete controversy pursued within the broader framework cast by the petition.’” In re Cascade Energy & Metals Corp., 956 F.2d 935, 938-39 (10th Cir.1992) (quoting In re Durability, Inc., 893 F.2d 264, 266 (10th Cir.1990)). In this case, the cash collateral issue was so closely tied to the question of relief from the automatic stay that both issues constitute a discrete controversy. The bankruptcy court’s order on both issues is therefore final for purposes of appeal pursuant to 28 U.S.C. 158(a). IV. Standard of Review In reviewing decisions of the bankruptcy court, the district court must accept the factual findings of the bankruptcy court unless they are clearly erroneous. Virginia Beach Federal Sav. & Loan Ass’n v. Wood, 901 F.2d 849, 851 (10th Cir.1990); Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel, Inc.), 798 F.2d 396, 399 (10th Cir.1986). The district court, however, must review the bankruptcy court’s legal conclusions de novo. Wood, 901 F.2d at 851; Branding Iron Motel, 798 F.2d at 399-400. Mixed questions of law and fact are subject to de novo review if such mixed questions involve “primarily a consideration of legal principles.” Matter of Tri-State Equip., Inc., 792 F.2d 967, 970 (10th Cir.1986)." }, { "docid": "12818869", "title": "", "text": "commercially reasonable standards. But in any event, the court need not decide this issue in finding a fair ground for litigation; likewise, the court need not decide whether the higher standard of good faith should apply to plaintiffs as merchants. The evidence shows that there is a fair ground for. dispute on the issue of whether plaintiffs were buyers in the ordinary course, and that is all that is required at this point. In light of the foregoing, the court finds that there is a fair ground for litigation on the plaintiffs’ claims of ownership in the disputed cattle. Having so ruled, the court will only briefly discuss the plaintiffs’ theory based upon common-law agency. Advanced primarily by the Brans-cums, the gist of plaintiffs’ agency theory .is that based upon the parties’ course of dealings, McAtee had actual or apparent authority to act as Boerdery’s agent in selling cattle to the plaintiffs. Boerdery counters that McAtee was an agent for the plaintiffs, not Boerdery, and could not bind Boerdery when acting adversely to its interests. In Kansas, the party asserting an agency bears the burden of establishing its existence by clear and satisfactory evidence. In re Branding Iron Motel, Inc., 798 F.2d 396, 401 (10th Cir.1986). “An agency does not exist merely ‘because a third person assumed it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make an agency seem rational and probable....’” Id. (quoting Highland Lumber Co. v. Knudson, 219 Kan. 366, 548 P.2d 719, 723 (1976)). The Kansas Supreme Court has defined an apparent agent as “one whom the principal has intentionally or by want of ordinary care induced third persons to believe to be his agent, although no authority has been conferred upon him, either expressly or by implication.” In re Branding Iron Motel, 798 F.2d at 401 (quoting Greep v. Bruns, 160 Kan. 48, 159 P.2d 803, 808 (1945)). From the evidence presented, the court would be hard pressed to find that the plaintiffs have shown a substantial likelihood of success on their" } ]

[ { "docid": "20410432", "title": "", "text": "not support ALPA’s assertion that manifest disregard is the standard of review for a public policy challenge to an arbitration award under the RLA. The cited cases merely discuss our previous recognition of an arbitrator’s manifest disregard for the law as an extremely narrow, nonstatutory ground for vacating an arbitration award under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seg. See, e.g., St. John’s Mercy Med. Ctr. v. Delfino, 414 F.3d 882, 884 (8th Cir.2005). We have since explained the Supreme Court’s decision in Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586-87, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), eliminated judicially created vacatur standards under the FAA, including manifest disregard for the law. See Med. Shoppe Int’l, Inc. v. Turner Invs., Inc., 614 F.3d 485, 489 (8th Cir.2010) (holding “an arbitral award may be vacated only for the reasons enumerated in the FAA”); Craw ford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir.2008) (same). ALPA fails to explain how a defunct vacatur standard under the FAA determines the standard of review for the distinct public policy exception to the otherwise narrow grounds on which a court may set aside an arbitration award under the RLA. See Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 749-50 (8th Cir.1986) (discussing manifest disregard and public policy as distinct exceptions to the statutory restraints on judicial review under the FAA); Union Pac. R.R. v. United Transp. Union, 3 F.3d 255, 260-62 (8th Cir.1993) (holding that arbitration awards under the RLA are subject to public policy review and conducting de novo review). Manifest disregard does not apply to this appeal. C. Issue Preclusion In October 2007, ALPA obtained an award for another TSA pilot, Jason Kagan, for improper discharge under the same CBA. In contesting Kagan’s grievance, TSA argued ALPA’s payments to Kagan were an illegal loan and any backpay award would violate public policy. After the arbitrator rejected TSA’s argument, TSA and ALPA entered into a settlement agreement and TSA did not seek judicial review of the award. ALPA asserts the Board’s conclusion in" } ]

[ { "docid": "6937459", "title": "", "text": "a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). Under the FAA: [A] federal court [may] correct a technical error, [ ]strike all or a portion of an award pertaining to an issue not at all subject to arbitration, and[] vacate an award that evidences affirmative misconduct in the arbitral process or the final result or that is completely irrational or exhibits a manifest disregard for the law. These grounds afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures. Kyocera, 341 F.3d at 997-98. Five years after our holding in Kyocera, the Supreme Court took up the issue of the proper scope of review of arbitral awards under the FAA in Hall St. Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008) (“Hall Street ”). In Hall Street, the Court considered whether an arbitration agreement could expand the scope of judicial review for vacatur of an arbitral award to include review for legal error along with the enumerated grounds in § 10 of the FAA. The Court agreed with our holding in Kyocera and held that “§ [ ]10 ... provide[s] the FAA’s exclusive grounds for expedited vacatur. ...” Id. at 584,128 S.Ct. 1396. Kyocera’s and Hall Street’s holdings then stand for the proposition that § 10 of the FAA provides the exclusive means by which a court reviewing an arbitration award under the FAA may grant vacatur of a final arbitration award, and that such review under the FAA is limited. Indeed, § 10 of the FAA provides no authorization for a merits review. Under this framework we reject Biller’s argument that the district court erred by not conducting a merits review of the Final Award. Biller’s reliance on Cable Connection, Inc. v. DirecTV, Inc., 44 Cal.4th 1334, 82 Cal.Rptr.3d 229, 190 P.3d 586 (2008) is misplaced, because the FAA governs the arbitration agreement, as we have already decided. In Cable Connection, the California Supreme Court considered" }, { "docid": "23359944", "title": "", "text": "v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), had affected the status of manifest disregard as a basis for vacating or modifying an arbitration award. Specifically, the district court considered Hall Street to have eliminated manifest disregard as an “independent basis on which to upset an arbitration award,” noting that, even if manifest disregard might be characterized as a catch-all phrase used to refer to the modification and vacatur grounds articulated in FAA §§ 10 and 11, Hall Street left “no doubt that the statutory bases are exclusive.” T. Co. Metals LLC v. Dempsey Pipe & Supply, Inc., No. 07-civ-7747, slip op. at 7 & n. 4 (S.D.N.Y. July 8, 2008). Because T.Co failed to argue persuasively for the application of one of the statutory grounds under §§10 and 11, the district court denied T.Co’s motion to vacate or modify the diminution damages award to Dempsey. In a footnote, the district court also explicitly rejected the applicability of FAA § 10(a)(4) — which permits vacatur where an arbitrator “exceeded [his] powers” — to the award of diminution-in-value damages. See 9 U.S.C. § 10(a)(4). Finally, the district court explained in the alternative that, even if manifest disregard were still a viable basis on which to modify or vacate an arbitration award, the diminution-in-value award was a “reasoned judgment” that did not constitute a manifest disregard of the law. As for the arbitrator’s correction of what it perceived to be clerical errors, the district court agreed with Dempsey that these errors were not evident on the face of the award and were not obvious errors in mathematical computation. Such errors could not be corrected by the arbitrator, the district court concluded, because “to do so would violate the functus officio doctrine,” T. Co. Metals LLC, No. 07-civ-7747, slip op. at 8, which limits the power of arbitrators to act once they have decided all of the issues submitted to them for arbitration. See id. at 7-8. The district court therefore concluded that the arbitrator had exceeded his powers and that, pursuant to FAA § 10(a)(4), vacatur of" }, { "docid": "23362435", "title": "", "text": "E. GRADY JOLLY, Circuit Judge: An arbitration panel ordered Citigroup Global Márkets to pay Debra Bacon $256,000. Citigroup moved the district court to vacate the award, and the district court obliged on the basis that the arbitrators had manifestly disregarded the law. On appeal, we consider whether manifest disregard of the law remains a valid ground for vacatur of an arbitration award in the light of the Supreme Court’s recent decision in Hall Street Associates, L.L.C. v. Mattel, Inc., — U.S. -, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008). We conclude that Hall Street restricts the grounds for vacatur to those set forth in § 10 of the Federal Arbitration Act (FAA or Act), 9 U.S.C. § 1 et seq., and consequently, manifest disregard of the law is no longer an independent ground for vacating arbitration awards under the FAA. Hall Street effectively overrules our previous authority to the contrary, so we must VACATE the district court’s judgment and REMAND for reconsideration in accord with the exclusivity of the statutory grounds. I. Debra Bacon’s quarrel with Citigroup began in 2002 when she discovered that her husband had withdrawn funds from her Citigroup Individual Retirement Accounts without her permission. By forging her signature, he made five withdrawals totaling $238,000. As soon as Bacon discovered the unauthorized withdrawals, she notified Citigroup. In 2004, Bacon submitted a claim in arbitration against Citigroup seeking reimbursement for the unauthorized withdrawals. The arbitration panel granted Bacon $218,000 in damages and $38,000 in attorneys’ fees. Citing § 10 of the FAA, Citigroup made an application to the district court requesting vacatur of the award. The district granted the motion to vacate, holding that the award was made in manifest disregard of the law. The court based its holding on three grounds: 1) Bacon was not harmed by the withdrawals because her husband used the money for her benefit and subsequently promised to pay her back; 2) Bacon’s claims were barred by Texas law, which permits such claims only if the customer reports the unauthorized transaction within thirty days of the withdrawal; and 3) Texas law requires" }, { "docid": "23620308", "title": "", "text": "of the evidence as proper ground for vacating an arbitrator’s award.” Wallace v. Buttar, 378 F.3d 182, 193 (2d Cir.2004) (citation and internal quotation marks omitted; emphasis added). III. Stolt-Nielsen’s “Manifest Disregard” Claim A. Legal Standards The party seeking to vacate an award on the basis of the arbitrator’s alleged “manifest disregard” of the law bears a “heavy burden.” GMS Group, LLC v. Benderson, 326 F.3d 75, 81 (2d Cir.2003). “Our review under the [judicially constructed] doctrine of manifest disregard is ‘severely limited.’ ” Duferco, 333 F.3d at 389 (quoting India v. Cargill Inc., 867 F.2d 130, 133 (2d Cir.1989)). “It is highly deferential to the arbitral award and obtaining judicial relief for arbitrators’ manifest disregard of the law is rare.” Id. The “manifest disregard” doctrine allows a reviewing court to vacate an arbitral award only in “those exceedingly rare instances where some egregious impro priety on the part of the arbitrators is apparent.” Id. Vacatur of an arbitral award is unusual for good reason: The parties agreed to submit their dispute to arbitration, more likely than not to enhance efficiency, to reduce costs, or to maintain control over who would settle their disputes and how— or some combination thereof. See Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 138-39 (2d Cir.2007); Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir.1997); see also Note, Judicial Review of Arbitration Awards on the Merits, 63 Harv. L.Rev. 681, 681-82 (1950). “To interfere with this process would frustrate the intent of the parties, and thwart the usefulness of arbitration, making it ‘the commencement, not the end, of litigation.’ ” Duferco, 333 F.3d at 389 (quoting Burchell v. Marsh, 58 U.S. (17 How.) 344, 349, 15 L.Ed. 96 (1854)). It would fail to “maintain arbitration’s essential virtue of resolving disputes straightaway.” Hall Street Assocs., L.L.C. v. Mattel, Inc., — U.S. -, 128 S.Ct. 1396, 1405, 170 L.Ed.2d 254 (2008). In this light, “manifest disregard” has been interpreted “clearly [to] mean[ ] more than error or misunderstanding with respect to the law.” Merrill Lynch, Pierce, Fenner & Smith," }, { "docid": "8577882", "title": "", "text": "576, [585, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008) ],” T.Co, 592 F.3d at 339, the Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., — U.S. -, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (“Stolt-Nielsen ”), declined to decide whether the manifest disregard standard “survives [its] decision in Hall Street Associates ... as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10,” 130 S.Ct. at 1768 n. 3. The Stolt-Nielsen Court instead assumed “arguendo ” that the manifest disregard standard “requires] a showing that the arbitrators knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue,- and nonetheless willfully flouted the governing law by refusing to apply it,” id. (internal quotation marks omitted), and found that that standard was “satisfied” in the case before it, id. This Court, in the wake of Hall Street Associates, “concluded that manifest disregard remains a valid ground for vacating arbitration awards,” T.Co, 592 F.3d at 340 (internal quotation marks omitted); and we have continued to recognize that standard as a valid ground in the wake of the Supreme Court’s decision in Stolt-Nielsen, see Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121-22 (2d Cir.2011). Our standard for what constitutes a manifest disregard largely tracks the standard assumed arguendo by the Supreme Court in Stolt-Nielsen. See, e.g., Jock v. Sterling Jewelers Inc., 646 F.3d at 121 n. 1 (to apply the manifest disregard standard, the court must “consider, first, ‘whether the governing law alleged to have been ignored by the arbitrators was well defined, explicit, and clearly applicable,’ and, second, whether the arbitrator knew about ‘the existence of a clearly governing legal principle but decided to ignore it or pay no attention to it’ ” (quoting Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 209 (2d Cir.2002) (“Westerbeke ”))); T.Co., 592 F.3d at 339; Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir.2004); Hoeft v. MVL Group, Inc., 343 F.3d at 69; Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us," }, { "docid": "23359949", "title": "", "text": "Id. at 93 (quoting Duferco, 333 F.3d at 389-90). Recently, the Supreme Court placed the proper scope of the manifest disregard doctrine into some doubt with its decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1404, 170 L.Ed.2d 254 (2008). On appeal, T.Co argues extensively that, contrary to the determination of the district court, Hall Street maintains manifest disregard as a viable ground for vacating an arbitration award. This Court recently made clear in Stolir-Nielsen SA v. AnimalFeeds International Corp. that it reads Hall Street as “reconceptualiz[ing]” manifest disregard “as a judicial gloss on the specific grounds for vacatur” of arbitration awards under 9 U.S.C. § 10. See Stoltr-Nielsen, 548 F.3d at 94-95. So interpreted, we concluded that manifest disregard “remains a valid ground for vacating arbitration awards.” Id. at 94. The Supreme Court has granted certiorari to review Stolt-Nielsen, explicitly on another issue. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. -, 129 S.Ct. 2793, 174 L.Ed.2d 289 (2009). Even if the Court were to address and confirm our interpretation of the manifest disregard doctrine, however, such a decision would provide no solace to T.Co. We agree with the district court that “[e]ven if ‘manifest disregard of the law’ [is] still a viable theory, it would be inapplicable here,” see T. Co. Metals LLC, No. 07-civ-7747, slip op. at 6, because the arbitrator reasonably interpreted New York law to permit Dempsey to recover the diminution in value of the pipe under N.Y. U.C.C. § 2-714(2) notwithstanding the parties’ contractual bar on consequential damages. In arguing to the contrary, T.Co errs by making the unwarranted assumption that the breach-of-warranty damages that the arbitrator calculated pursuant to N.Y. U.C.C. § 2-714(2) inescapably amount to an award of “lost profits,” which in turn constitute consequential damages. There is a difference between the loss of the inherent economic value of the contractual performance as warranted, which N.Y. U. C.C. § 2-714(2) addresses, and the loss of profits that the buyer anticipated garnering from transactions that were to follow the contractual performance. The fact that the N.Y." }, { "docid": "9006911", "title": "", "text": "authority under the contract. The district court confirmed the award, and ProEnergy appeals. We review the district court's legal conclusions de novo and its factual findings for clear error. Medicine Shoppe Int'l, Inc. v. Turner Invs., Inc. , 614 F.3d 485, 488 (8th Cir. 2010). Under the Federal Arbitration Act, 9 U.S.C. § 9, a court must confirm an arbitration award unless the award is vacated under 9 U.S.C. § 10, or modified or corrected pursuant to 9 U.S.C. § 11. Sections 10 and 11 set forth the exclusive grounds for vacating or modifying an award. See Hall Street Assocs., LLC v. Mattel, Inc. , 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). ProEnergy seeks to vacate the attorney's fees award under § 10 on the ground that the arbitrator \"exceeded [his] powers.\" 9 U.S.C. § 10(a)(4). An arbitrator does not \"exceed his powers\" by making an error of law or fact, even a serious one. The parties agreed that disputes would be finally determined by arbitration, and \"so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,\" the award should be confirmed. Medicine Shoppe , 614 F.3d at 488 (quoting McGrann v. First Albany Corp. , 424 F.3d 743, 748 (8th Cir. 2005) ). ProEnergy does not dispute that the contract includes a valid attorney's fees provision, or that the arbitrator was \"arguably construing\" the limitation on liability provision when he determined that the provision did not extend to attorney's fees. Nevertheless, ProEnergy contends the arbitrator exceeded his powers because he did not follow the contract's section on governing law. The provision specifies that \"[t]his Agreement will be subject to, governed by and construed in accordance with the laws of the State of Missouri, without giving effect to its conflict of law rules.\" Missouri law, ProEnergy asserts, considers attorney's fees to be \"loss\" or \"damage,\" so that any amount awarded for fees should count toward the limit of liability under the contract. ProEnergy urges that the arbitrator exceeded his powers when he \"disregarded\" the choice-of-law" }, { "docid": "6470703", "title": "", "text": "Gas Bumi Negara, 364 F.3d 274, 287 (5th Cir.2004) (observing that the issue confronting countries \"where recognition and enforcement are sought” is \"whether that state should enforce the arbitral award”). . Section 10(d) of the FAA was re-designated as Section 10(a)(4) in 1990. See, e.g., S.Rep. No. 101-543, at 24 (1990), U.S. Code Cong. & Admin. News 1990, p. 3931. . In Hall Street Associates LLC v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), the Supreme Court called into question the continuing viability of the \"manifest disregard of the law” standard as a non-statutory basis for vacatur of an arbitral award. See id. at 584, 128 S.Ct. 1396 (concluding that Sections 10(a) and 11 of the FAA \"provide the ... exclusive grounds for expedited vacatur and modification” of an arbitral award); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., - U.S. -, -, 130 S.Ct. 1758, 1768 n. 3, 176 L.Ed.2d 605 (2010) (declining to decide whether the \"manifest disregard of the law” standard survived Hall Street Associates). While the Ninth Circuit has continued to recognize the \"manifest disregard of the law” standard after Hall Street Associates, see Comedy Club, 553 F.3d at 1281, the District of Columbia Circuit has yet to address this issue, see Regnery Pub., Inc. v. Miniter, 368 Fed.Appx. 148, 149 (D.C.Cir.2010) (assuming, without deciding, that the “manifest disregard of the law” standard survived Hall Street Associates). . In fact, this appears to be the exact argument that Argentina is pursuing here — not that the arbitrator resolved a dispute falling outside the scope of the arbitration, but that the panel deliberately ignored the terms of the Investment Treaty and applicable principles of international law. . To be sure, the issue of whether the parties in a dispute “have agreed to submit a particular dispute to arbitration” is one that is “typically an issue for judicial determination.” Granite Rock, -U.S. at-, 130 S.Ct. at 2855 (internal quotation marks omitted). Only where the record reflects a \"clear and unmistakable” intention by the parties to arbitrate arbitrability would that issue fall outside the reach of" }, { "docid": "3753456", "title": "", "text": "a securities index or foreign currency or a long position in an option: 50 percent of the current market value of the security or the percentage set by the regulatory authority where the trade occurs, whichever is greater. Id. § 220.12(a). . The continued validity of manifest disregard as a basis for vacating arbitration awards has been thrown into doubt by the Supreme Court's holding in Hall Street Associates, L.L.C. v. Mattel, Inc. that \"§§ 10 and 11 respectively provide the FAA's exclusive grounds for expedited vacatur and modification.” 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). Subsequently, the Court expressly declined to \"decide whether ‘manifest disregard’ survives ... Hall Street ... as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010). The Courts of Appeals have divided on the answer to that question. Compare Comedy Club, Inc. v. Improv W. Assocs., 553 F.3d 1277, 1290 (9th Cir. 2009) (holding that manifest disregard survives as “shorthand for ... 9 U.S.C. § 10(a)(4), which states that the court may vacate 'where the arbitrators exceeded their powers' ”), with Affymax, Inc. v. Ortho-McNeil-Janssen Pharm., Inc., 660 F.3d 281, 285 (7th Cir. 2011) (holding that after Hall Street, \" 'manifest disregard of the law’ is not a ground on which a court may reject an arbitrator's award under the Federal Arbitration Act”). Because we conclude that the Goldmaris' manifest disregard claim does not raise a substantial question of federal law, we need not inquire into the continuing validity of manifest disregard as a basis for vacatur. . Because the Goldmans’ claims are not nearly as substantial for jurisdictional purposes as those in the NASDAQ case, we need not reach the question of whether we would adopt the Second Circuit's analysis of federal question jurisdiction from the NASDAQ opinion. We do note, however, that the dissenting opinion in NASDAQ makes a compelling argument that \"NASDAQ is a shareholder-owned, publicly-traded," }, { "docid": "23362451", "title": "", "text": "Sections 10 and 11 of the Federal Arbitration Act”). But in Williams v. Cigna, nearly fifty years after Wilko, we finally embraced manifest disregard as a nonstatutory ground for vacating arbitration awards. 197 F.3d at 759. We concluded that the departure from precedent was necessary and justified in the light of the Supreme Court’s opinion in First Options of Chicago, Inc. v. Kaplan, which cited 9 U.S.C. § 10 and Wilko for the proposition that courts will set arbitration awards aside “only in very unusual circumstances.” 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). III. A. The question before us now is whether, under the FAA, manifest disregard of the law remains valid, as an independent ground for vacatur, after Hall Street. The answer seems clear. Hall Street unequivocally held that the statutory grounds are the exclusive means for vacatur under the FAA. Our case law defines manifest disregard of the law as a nonstatutory ground for vacatur. See Kergosien, 390 F.3d at 353; Prestige Ford, 324 F.3d at 395; Harris v. Parker Coll. of Chiropractic, 286 F.3d 790, 792 (5th Cir.2002). Thus, to the extent that manifest disregard of the law constitutes a nonstatutory ground for vacatur, it is no longer a basis for vacating awards under the FAA. Four other circuits have considered this issue. The First Circuit, in dictum and with little discussion, concluded that Hall Street abolished manifest disregard of the law as a ground for vacatur. See Ramos-Santiago v. United Parcel Serv., 524 F.3d 120, 124 n. 3 (1st Cir.2008) (“We acknowledge the Supreme Court’s recent holding in Hall Street Assocs., L.L.C. v. Mattel that manifest disregard of the law is not a valid ground for vacating or modifying an arbitral award in cases brought under the [FAA].” (citations omitted)). The Sixth Circuit, in an unpublished opinion, reached the opposite conclusion by narrowly eon struing the holding of Hall Street to apply only to contractual expansions of the grounds for review. Coffee Beanery, Ltd. v. WW, L.L.C., 300 Fed.Appx. 415, 418-19 (6th Cir.2008). The Second Circuit has also held that manifest disregard" }, { "docid": "23620314", "title": "", "text": "it would be instantly perceived as such by the average person qualified to serve as an arbitrator. Duferco, 333 F.3d at 389-90 (citations omitted). B. The Effect of Hall Street on the “Manifest Disregard” Doctrine We pause to consider whether a recent Supreme Court decision, Hall Street Associates, L.L.C. v. Mattel, Inc., — U.S. --, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), affects the scope or vitality of the “manifest disregard” doctrine. See Thomas E.L. Dewey & Kara Siegel, Room for Error: ‘Hall Street’ and the Shrinking Scope of Judicial Review of Arbitral Awards, N.Y.L.J., May 15, 2008, at 24 (commenting that Hall Street “appeared to question the validity” of the manifest disregard doctrine). There, the parties had entered into an arbitration agreement that, unlike the FAA, provided for a federal court’s de novo review of the arbitrator’s conclusions of law. Hall Street, 128 S.Ct. at 1400-01. The Court rejected the parties’ attempt to contract around the FAA for expanded judicial review of arbitration awards, concluding that the grounds for vacatur of an arbitration award set forth in the FAA, 9 U.S.C. § 10, are “exclusive.” Hall Street, 128 S.Ct. at 1401, 1403. Although the “manifest disregard” doctrine was not itself at issue, the Hall Street Court nonetheless commented on its origins: The Wilko Court ... remarked (citing FAA § 10) that “[pjower to vacate an [arbitration] award is limited,” and went on to say that “the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation.” Hall Street, 128 S.Ct. at 1403 (quoting Wilko, 346 U.S. at 436-37, 74 S.Ct. 182) (citations omitted) (second, third, and fourth alterations in Hall Street). Maybe the term “manifest disregard” was meant to name a new ground for review, but maybe it merely referred to the § 10 grounds collectively, rather than adding to them. Or, as some courts have thought, “manifest disregard” may have been shorthand for § 10(a)(3) or § 10(a)(4), the subsections authorizing vacatur when the arbitrators were “guilty of misconduct”" }, { "docid": "5164810", "title": "", "text": "arbitration if it can successfully challenge the validity of the arbitration clause itself”). . In Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), the Supreme Court observed that the “manifest disregard” doctrine might be a ground for review independent of the FAA, or might instead be a name for some, or all, of the grounds for vacatur of arbitral awards set forth in Section 10(a) of the FAA, 9 U.S.C. § 10(a), including circumstances \"where the arbitrators were guilty of misconduct,” id. § 10(a)(3), or \"exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made,” id. § 10(a)(4). See Hall St. at 1403-04 (\"Maybe the term 'manifest disregard’ was meant to name a new ground for review, but maybe it merely referred to the § 10 grounds collectively, rather than adding to them.”). In StoltNielsen, we read Hall St. to hold that the FAA set forth the “exclusive” grounds for vacating an arbitration award, and that the term \"manifest disregard” was merely a \"judicial gloss” on some of those grounds. Stolt-Nielsen, 548 F.3d at 94. The Supreme Court has granted certiorari to review StoltNielsen explicitly on another issue, see - U.S. -, 129 S.Ct. 2793, 174 L.Ed.2d 289 (2009), but even if it confirms or rejects our interpretation of the term \"manifest disregard,” that will not affect this appeal. If the Stolt-Nielsen interpretation is correct, we may review this arbitral award for manifest disregard because the arbitration took place in the United States and therefore is \"subject to the FAA provisions,” like Section 10(a), \"governing domestic arbitration awards.” See Zeiler, 500 F.3d at 164; see also 9 U.S.C. § 208. If our interpretation was incorrect, this opinion will be applying a judicially created \"non-statutory defense to enforcement.” Telenor Mobile Commc'ns AS v. Storm LLC, 524 F.Supp.2d 332, 344 (S.D.N.Y.2007). . The first and third steps of the manifest disregard inquiry—that the Ackermann rule was clear, plainly applicable, and made known to the arbitration panel—are undisputed. . Storm does" }, { "docid": "23359948", "title": "", "text": "marks omitted). With respect to contract interpretation, this standard essentially bars review of whether an arbitrator misconstrued a contract. See id. We have recognized three components to this Circuit’s application of the manifest disregard standard: First, we must consider whether the law that was allegedly ignored was clear, and in fact explicitly applicable to the matter before the arbitrators. An arbitrator obviously cannot be said to disregard a law that is unclear or not clearly applicable. Thus, misapplication of an ambiguous law does not constitute manifest disregard. Second, ... we must find that the law was in fact improperly applied, leading to an erroneous outcome.... Even where explanation for an award is deficient or non-existent, we will confirm it if a justifiable ground for the decision can be inferred from the facts of the case. Third, ... we look to a subjective element, that is, the knowledge actually possessed by the arbitrators. In order to intentionally disregard the law, the arbitrator must have known of its existence, and its applicability to the problem before him. Id. at 93 (quoting Duferco, 333 F.3d at 389-90). Recently, the Supreme Court placed the proper scope of the manifest disregard doctrine into some doubt with its decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1404, 170 L.Ed.2d 254 (2008). On appeal, T.Co argues extensively that, contrary to the determination of the district court, Hall Street maintains manifest disregard as a viable ground for vacating an arbitration award. This Court recently made clear in Stolir-Nielsen SA v. AnimalFeeds International Corp. that it reads Hall Street as “reconceptualiz[ing]” manifest disregard “as a judicial gloss on the specific grounds for vacatur” of arbitration awards under 9 U.S.C. § 10. See Stoltr-Nielsen, 548 F.3d at 94-95. So interpreted, we concluded that manifest disregard “remains a valid ground for vacating arbitration awards.” Id. at 94. The Supreme Court has granted certiorari to review Stolt-Nielsen, explicitly on another issue. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. -, 129 S.Ct. 2793, 174 L.Ed.2d 289 (2009). Even if the Court were to address and" }, { "docid": "6937458", "title": "", "text": "at 994 (emphasis added). We went on to note that under the FAA, “if a party seeks a judicial order confirming an arbitration award, the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 [vacatur] and 11 [modification] of [the FAA].” Id. at 997 (internal quotation marks and citations omitted). Because Biller seeks vacatur of the Final Award, we limit our discussion hereafter to § 10 of the FAA. Under § 10 of the FAA, vacatur is permitted only: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (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; or (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. 9 U.S.C. § 10(a). Under the FAA: [A] federal court [may] correct a technical error, [ ]strike all or a portion of an award pertaining to an issue not at all subject to arbitration, and[] vacate an award that evidences affirmative misconduct in the arbitral process or the final result or that is completely irrational or exhibits a manifest disregard for the law. These grounds afford an extremely limited review authority, a limitation that is designed to preserve due process but not to permit unnecessary public intrusion into private arbitration procedures. Kyocera, 341 F.3d at 997-98. Five years after our holding in Kyocera, the Supreme Court took up the issue of the proper scope of review of arbitral awards under the FAA in Hall St. Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008) (“Hall Street ”). In Hall Street, the Court considered whether an arbitration agreement could expand the scope of judicial review for" }, { "docid": "10510751", "title": "", "text": "final, and definite award upon the subject matter submitted was not made. Prior to Hall Street, a court could vacate arbitration awards on grounds other than those listed in the FAA. See Schoch, 341 F.3d at 788 (holding that in addition to the FAA’s expressed reasons for vacating arbitration awards, a court can vacate an arbitration award if it is “completely irrational,” which means “it fails to draw its essence from the agreement,” or if the award evidences a manifest disregard for the law.). In 2008, however, Hall Street, resolving a circuit split, held that “the text [of the FAA] compels a reading of the §§ 10 and 11 categories as exclusive.” 552 U.S. at 586, 128 S.Ct. 1396. On application for an order confirming the arbitration award, the court “must grant” the order “unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” There is nothing malleable about “must grant,” which unequivocally tells courts to grant confirmation in all cases, except when one of the “prescribed” exceptions applies. Id. at 587, 128 S.Ct. 1396. We have previously recognized the holding in Hall Street and similarly hold now that an arbitral award may be vacated only for the reasons enumerated in the FAA. See Crawford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir.2008) (citing Hall Street, 552 U.S. at 584, 128 S.Ct. 1396). Appellants do not allege any corruption, fraud, partiality or an abuse of power — the grounds recognized by the FAA. Rather, Appellants argue that the arbitrator manifestly disregarded Missouri law, which requires that future fees be ascertained with reasonable certainty. Appellants challenge alleged factual and legal flaws in the arbitrator’s award, namely that the arbitrator ignored the allegations that MSI delayed approval of the transfer of Appellants’ pharmacy; MSI failed to present adequate evidence of lost future profits; MSI failed to mitigate its damages; and MSI failed to exercise its option to take over the operation of Appellants’ franchise. Appellants’ claims, including the claim that the arbitrator disregarded the law, are not included among those specifically enumerated" }, { "docid": "8577881", "title": "", "text": "been prejudiced; or (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. 9 U.S.C. § 10(a). In addition, as “judicial gloss on the[se] specific grounds for vacatur of arbitration awards,” T.Co, 592 F.3d at 340 (internal quotation marks omitted), we have held that the court may set aside an arbitration award if it was rendered in “manifest disregard of the law,” id.; see, e.g., Hoeft v. MVL Group, Inc., 343 F.3d 57, 64 (2d Cir.2003) (citing Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 98 L.Ed. 168 (1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 485, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, 933 (2d Cir.1986) (“Bobker”)). Although “the Supreme Court placed the proper scope of the manifest disregard doctrine into some doubt with its decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, [585, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008) ],” T.Co, 592 F.3d at 339, the Supreme Court in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., — U.S. -, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (“Stolt-Nielsen ”), declined to decide whether the manifest disregard standard “survives [its] decision in Hall Street Associates ... as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10,” 130 S.Ct. at 1768 n. 3. The Stolt-Nielsen Court instead assumed “arguendo ” that the manifest disregard standard “requires] a showing that the arbitrators knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue,- and nonetheless willfully flouted the governing law by refusing to apply it,” id. (internal quotation marks omitted), and found that that standard was “satisfied” in the case before it, id. This Court, in the wake of Hall Street Associates, “concluded that manifest disregard remains a valid ground for vacating arbitration awards,” T.Co, 592 F.3d at 340 (internal" }, { "docid": "6921199", "title": "", "text": "not raised any issues concerning the quality and completeness of the arbitration hearing record, and there is no indication that the absence of a complete hearing transcript has prejudiced him in any way. . The D.C. Circuit has previously recognized that, in addition to the four statutory grounds listed in 9 U.S.C. § 10(a), an arbitration award may be vacated if it is in \"manifest disregard of the law.” See, e.g., Kurke, 454 F.3d at 354. The Supreme Court, however, recently held in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 582, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), that the provisions set forth in 9 U.S.C. § 10 “provide the FAA’s exclusive grounds for expedited vacatur.” In light of this holding, “some courts have refused to entertain vacatur based on ‘manifest disregard for the law.' ” See Regnery Publishing, Inc. v. Miniter, 601 F.Supp.2d 192, 195 (D.D.C.2009) (citing cases). Neither the Supreme Court nor the D.C. Circuit has ultimately resolved this issue, however, and it therefore remains an open question in this Circuit whether the \"manifest disregard” standard survives Hall Street. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., -U.S.-, 130 S.Ct. 1758, 1768, n. 3, 176 L.Ed.2d 605 (2010) (declining to decide whether “manifest disregard” survives Hall Street); Regnery Publishing, Inc. v. Miniter, 368 Fed.Appx. 148, 148-49 (D.C.Cir.2010) (assuming without deciding that the \"manifest disregard of the law” standard survives Hall Street). The Court concludes that it not need resolve the question at this time, as even a generous reading of Plaintiff's pro se pleadings provides no indication that he intended to argue that the arbitration award should be vacated as in manifest disregard of the law. See generally Pl.’s Mot. to Vacate; Pl.’s Reply. Moreover, it is readily apparent that even if he had made this argument and even if the standard remains viable in this Circuit, Plaintiff has not shown that \"(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to" }, { "docid": "23496261", "title": "", "text": "contrary to the agreed schedule, while keeping in force the restrictive covenant makes sense in so far as CCI should not have an exclusive license on Improv clubs absent complying with designated performance. And so long as CCI was running some Improv clubs, a restrictive covenant to some degree could protect Improv West from damage caused by improper competition. Because we cannot say that there is no basis in the record for the arbitrator’s decision, we hold that the arbitrator’s award is not completely irrational. See NF & M, 524 F.2d at 760. D Finally, we address CCI’s claim that the partial arbitration award should be vacated because it is in violation of CBPC § 16600. CCI argues that the arbitrator’s validation of § 9.j. is in manifest disregard of the law. Improv West counters that after the recent Supreme Court case, Hall Street Associates, — U.S.—, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), manifest disregard of the law is not a valid ground for vacatur. In Hall Street Associates, the Supreme Court held that the FAA provided exclusive grounds to modify or vacate an arbitration award. Id. at 1404. Improv West argues that manifest disregard of the law is not among the statutory grounds for vacatur, and therefore we must amend our prior opinion that vacated this part of the arbitrator’s award for that reason. We have already determined that the manifest disregard ground for vacatur is shorthand for a statutory ground under the FAA, specifically 9 U.S.C. § 10(a)(4), which states that the court may vacate “where the arbitrators exceeded their powers.” Kyocera Corp. v. Prudential-Bache T Servs., 341 F.3d 987, 997 (9th Cir.2003) (en banc) (holding that “arbitrators ‘exceed their powers’ ... when the award is ‘completely irrational,’ or exhibits a ‘manifest disregard of law’ ”) (citations omitted). The Supreme Court did not reach the question of whether the manifest disregard of the law doctrine fits within §§ 10 or 11 of the FAA. Hall Street Associates, 128 S.Ct. at 1404. Instead, it listed several possible readings of the doctrine, including our own. M(“Or, as some courts" }, { "docid": "10510752", "title": "", "text": "exceptions applies. Id. at 587, 128 S.Ct. 1396. We have previously recognized the holding in Hall Street and similarly hold now that an arbitral award may be vacated only for the reasons enumerated in the FAA. See Crawford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir.2008) (citing Hall Street, 552 U.S. at 584, 128 S.Ct. 1396). Appellants do not allege any corruption, fraud, partiality or an abuse of power — the grounds recognized by the FAA. Rather, Appellants argue that the arbitrator manifestly disregarded Missouri law, which requires that future fees be ascertained with reasonable certainty. Appellants challenge alleged factual and legal flaws in the arbitrator’s award, namely that the arbitrator ignored the allegations that MSI delayed approval of the transfer of Appellants’ pharmacy; MSI failed to present adequate evidence of lost future profits; MSI failed to mitigate its damages; and MSI failed to exercise its option to take over the operation of Appellants’ franchise. Appellants’ claims, including the claim that the arbitrator disregarded the law, are not included among those specifically enumerated in § 10 and are therefore not cognizable. See Hall Street, 552 U.S. at 586, 128 S.Ct. 1396. The record reflects that the arbitrator acted within the scope of his authority. In the absence of an enumerated ground for vacation of the arbitrator’s order, we decline to review the merits of his conclusions. Appellants’ public policy argument that the confirmation of the award does not promote franchise markets also fails. Appellants have waived this argument, as they raised it for the first time in their brief to this court. When a party “who contests the merits of an arbitration award in court fails to first present the challenges on the merits to the arbitrators themselves, review is compressed still further, to nil.” Int’l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084, 1101 (8th Cir.2004) (internal quotations and citation omitted). III. Conclusion Accordingly, we affirm the judgment of the district court. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri." }, { "docid": "23359943", "title": "", "text": "from $420,537 to $340,587 ($950 per short ton — $737 per short ton x 1599 short tons). The Amended Award incorporating the arbitrator’s revisions was issued on June 4, 2007. TV. District Court Decision T.Co and Dempsey separately filed applications in the Southern District of New York to modify or vacate the Amended Award. In its application, T.Co alleged that the arbitrator’s decision to award diminution damages to Dempsey constituted manifest disregard of the law, requiring that portion of the award to be vacated. Dempsey’s application argued that the corrections entered by the arbitrator were not clerical errors within the meaning of ICDR Article 30(1), and therefore the arbitrator exceeded his authority in amending the award to account for those errors. On July 8, 2008, the district court issued a decision rejecting T.Co’s manifest disregard argument and accepting Dempsey’s contention that the arbitrator lacked the authority to correct the award as he did. With respect to T.Co’s manifest disregard argument, the district court observed that the Supreme Court’s recent decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), had affected the status of manifest disregard as a basis for vacating or modifying an arbitration award. Specifically, the district court considered Hall Street to have eliminated manifest disregard as an “independent basis on which to upset an arbitration award,” noting that, even if manifest disregard might be characterized as a catch-all phrase used to refer to the modification and vacatur grounds articulated in FAA §§ 10 and 11, Hall Street left “no doubt that the statutory bases are exclusive.” T. Co. Metals LLC v. Dempsey Pipe & Supply, Inc., No. 07-civ-7747, slip op. at 7 & n. 4 (S.D.N.Y. July 8, 2008). Because T.Co failed to argue persuasively for the application of one of the statutory grounds under §§10 and 11, the district court denied T.Co’s motion to vacate or modify the diminution damages award to Dempsey. In a footnote, the district court also explicitly rejected the applicability of FAA § 10(a)(4) — which permits vacatur where an arbitrator “exceeded [his]" } ]

[ { "docid": "13576642", "title": "", "text": "Per Curiam. The motion to dismiss is granted and the appeal is dismissed. Mr. Justice Harlan, with whom Mr. Justice Brennan joins, concurring. While I am of the view this appeal should be dismissed, I deem it appropriate to explain the basis for my conclusion since the issue tendered by appellant— whether symbolic expression by displaying a “mutilated” American flag is protected from punishment by the Fourteenth Amendment — is one that I cannot regard as insubstantial. See Street v. New York, 394 U. S. 576, 594 (1969). The record before us is not in my judgment suitable for considering this broad question as it does not adequately flush the narrower and predicate issue of whether there is a recognizable communicative aspect to appellant’s conduct which appears to have consisted merely of wearing a vest fashioned out of a cut-up American flag. Such a question, not insubstantial of itself, has been pretermitted in the Court’s previous so-called “symbolic speech” cases where the communicative content of the conduct was beyond dispute. See Tinker v. Des Moines School District, 393 U. S. 503 (1969); Gregory v. City of Chicago, 394 U. S. 111 (1969); Brown v. Louisiana, 383 U. S. 131 (1966); Bell v. Maryland, 378 U. S. 226 (1964); Garner v. Louisiana, 368 U. S. 157, 201 (concurring in judgment) (1961); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 632 (1943); see generally Note, Symbolic Conduct, 68 Col. L. Rev. 1091 (1968). The Court has, as yet, not established a test for determining at what point conduct becomes so intertwined with expression that it becomes necessary to weigh the State’s interest in proscribing conduct against the constitutionally protected interest in freedom of expression. While appellant contends that his conduct conveyed a symbolic message, the stipulated statement of facts on which this case comes to us suggests that the issue was not, in the first instance, determined as a factual matter by the trial court. Further, there is no indication that appellant either presented evidence on this question at trial or urged any standard at trial for determining" } ]

[ { "docid": "21010655", "title": "", "text": "alleged wrong, they overlap to some degree and often collapse into each other. Standing may be distinguished from ripeness, however, because where standing is at issue the question regarding the existence of an actual injury arises from the identity of the parties rather than — as here — the non-occurrence of events in the causal chain which may or may not occur. See generally L. Brilmayer, \"The Jurisprudence of Article III,” 93 Harv.L. Rev. 297, 298-99 (1979). . Appellee Union cites several cases for the proposition that an actual or impending injury is not required where a governmental act is challenged on grounds of overbreadth. See e.g., Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). As an initial observation, we note that the Union did not challenge the city ordinance on grounds of overbreadth. And we do not accept the contention that vagueness and overbreadth are synonymous: vagueness is based on due process, and overbreadth is part of first amendment doctrine. Yet assuming for the sake of argument that the overbreadth cases would apply equally to an attack based on vagueness, our conclusion would be the same. It is important to recognize the exact nature of the injury requirement the overbreadth cases address: they are about the standing aspect of justiciability, not ripeness. These cases do not stand for the proposition that no actual or impending injury is necessary; instead, they say that this plaintiff may be allowed to launch the attack even though he is not, or will not be, the one suffering the actual or impending injury. See Broadrick, 413 U.S. at 611-12, 93 S.Ct. at 2915-16. . The realm of protected speech and conduct for public employees is much narrower than that for the general public. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). And we believe the case law shows this narrowness affects the question of justiciability" }, { "docid": "4036119", "title": "", "text": "our analysis first by examining if appellee’s non-First Amendment attack on the statute’s facial vagueness may properly be considered, and then by proceeding to the merits of that attack. We shall then assess whether it is appropriate to subject the statute to a First Amendment overbreadth test, and continue with the detailed inquiries required by such a test. So, while the subject matter of this case is seat-of-the-pants, our analysis cannot be. Vagueness in a Non-First Amendment Context We first approach this case on the assumption that there are no First Amendment problems inhering in the statute or in appellee’s conduct. The threshold question then becomes, whether appellee’s conduct and the proscriptions of the statute are such that it is appropriate for a court to consider his facial challenge, in addition to his allegation that the law is vague as applied to him. The Commonwealth assumes there was no vagueness as applied to appellee, as did the Supreme Judicial Court. The unarticulated premise is that, whether or not the statute may be capable of unconstitutional applications in other situations, it is not vague as to one who sews a flag to the seat of his pants. Assuming, however, that the statute clearly covers appellee’s conduct, we must determine whether a court may hear appellee’s complaint that the statute is facially unconstitutional because others would not know whether their proposed conduct would constitute contemptuous treatment. Before Raines, an impressive series of cases considered vagueness attacks by looking solely to the text of the statute without examining the offender’s conduct, some cases involving conduct clearly covered by a statute. Raines, while stating that generally a person may not plead facial uneonstitutionality of a statute that is constitutional as to him, noted none of these cases although it recognized a size-able list of exceptions to its broad principle. Two of these exceptions are relevant to our present inquiry since their rationale supports the instant facial attack. Thus, where a statute has already been declared unconstitutional in a large number of its intended applications, and it appears that it was not intended to stand" }, { "docid": "12474206", "title": "", "text": "(1988)). The challenge to the present Ordinance, however, is based on vagueness. As the First Circuit explained: While related, [the doctrines of over-breadth and vagueness] derive from somewhat different policies and look to different effects. Overbreadth analysis looks to whether a law “sweeps within its ambit (protected) activities” as well as unprotected ones, while a vagueness inquiry focuss-es on whether a law states its proscriptions in terms sufficiently indefinite that persons of reasonable intelligence “must necessarily guess at its meaning.” Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1122 n. 9 (1st Cir.1981) (citations omitted). Here, as in Fantasy Book Shop, vagueness analysis is fitting since the Ordinance does not reach forms of expression beyond nude dancing, “but does state prohibitions that serve to preclude protected activity by their effect.” Id. Judicial construction of a vague statute is neither required nor appropriate. See, e.g., id. at 1122-24. 2. Time, Place, and Manner Restriction The City argues that the Ordinance should be analyzed as a content-neutral restriction on the time, place, and manner of protected speech. Two Supreme Court cases provide the standard for judging the validity of a so-called “time, place, and manner” restriction. In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Court applied a three-part test to an ordinance prohibiting an adult motion picture theater from locating within 1,000 feet of any residential zone, dwelling, park, or school. The Court first asked whether the ordinance was content-neutral. It then considered whether the ordinance: (1) was designed to serve a substantial governmental interest; and (2) allowed for reasonable alternative avenues of communication. See Renton, 475 U.S. at 50, 106 S.Ct. 925. Five years later, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), a plurality of the Court applied the four-pronged test first articulated in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), to an Indiana statute requiring nude performers to wear pasties and G-strings. In the course of its analysis, the Court" }, { "docid": "7664287", "title": "", "text": "F.2d 1102, 1105 (10th Cir.1973). C. The district court entered summary judgment in favor of the defendants on Mr. Jordan’s facial vagueness claim, while retaining jurisdiction over his facial overbreadth and as-applied claims. We conclude that these are not separate claims. Although not identical, vagueness and overbreadth challenges in the First Amendment context are alternative and often overlapping grounds for the same relief, namely invalidation of the offending regulation. Overbreadth and vagueness claims generally involve the same nucleus of facts, and require similar analysis of the terms and reach of the challenged provision. Almost inevitably, if vagueness and overbreadth are considered in two separate appeals, the court “would have to go over the same ground that it had covered in the first appeal.” Lawyers Title Ins., 118 F.3d at 1162. The Supreme Court has “traditionally viewed vagueness and overbreadth as logically related and similar doctrines.” Rounder v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The common rationale behind the two doctrines led one commentator to conclude that “First Amendment vagueness doc trine — as distinct from ordinary or non-First Amendment vagueness doctrine — is best conceptualized as a subpart of First Amendment overbreadth doctrine.” Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 904 (1991). Overbreadth and vagueness may overlap when the challenged statute is so unclear in its scope that officials enforce it in an overbroad manner. Similarly, a vague statute may be functionally overbroad if it causes affected persons to act as though the statutory language had the broadest possible meaning. Another commentator has gone so far as to assert “that when the Supreme Court has spoken of the facial vagueness of statutes touching first amendment rights, it has seldom if ever been referring to a constitutional vice different from the latent vagueness of an overbroad law.” Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.Rev. 844, 873 (1970). Facial challenges for vagueness and overbreadth involve a common preliminary inquiry about the statute’s effect on constitutionally protected activity. To mount a facial vagueness challenge, the litigant must show" }, { "docid": "737414", "title": "", "text": "— cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v United States, 394 US 165, 174-175, 22 L Ed 2d 176, 89 S.Ct 961 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. It is our view that’ § 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. (Footnote omitted.) Id. at 615-16, 93 S.Ct. at 2917-18. See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). In this case before the Court, the plaintiffs have largely intertwined their vagueness and overbreadth arguments. Nevertheless, the doctrines of vagueness and overbreadth are conceptually distinct and the Court believes that the crux of plaintiffs’ challenges to Ordinance 14.02(C) is that it is impermissibly vague. Turning to the merits of plaintiffs’ overbreadth arguments, the Court finds that it must be rejected. Ordinance 14.02(C) is appropriately limited and contains no substantial overbreadth such as would require its invalidation. C. Equal Protection Putting aside plaintiffs’ overbreadth and vagueness challenges for the moment, the crux of plaintiffs’ attack against Ordinance 14.02(C) is their claim that the Ordinance serves no legitimate governmental interest and acts only to dramatically limit access to protected speech. In this regard, the plaintiffs argue that Ordinance 14.02(C) is a content based regulation which must be analyzed under the four factors set forth in United States v. OBrien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O’Brien, the Supreme Court considered a First Amendment challenge to a conviction under federal law for the knowing destruction of a selective service registration certificate. The Court noted that in addressing such symbolic speech challenges, a Court should consider four" }, { "docid": "14483504", "title": "", "text": "104 S.Ct. 3244; McCabe, 12 F.3d at 1562-63. Because Willis’s dancing is not protected First Amendment activity, Willis had no protected right to associate for the purpose of dancing. We therefore need not consider Willis’s associational claims further. Willis also contends that the Town’s lewd-dancing policy is unconstitutionally vague and overbroad. While “vagueness and overbreadth are related constitutional concepts, they are separate and distinct doctrines, subject in application to different standards and intended to achieve different purposes.” United States v. Morison, 844 F.2d 1057, 1070 (4th Cir.1988). “The vagueness doctrine is rooted in due process principles and is basically directed at lack of sufficient clarity and precision in the statute; overbreadth, on the other hand, would invalidate a statute when it infringes on expression to a degree greater than justified by the legitimate governmental need which is the valid purpose of the statute.” Id. (footnotes, internal quotation marks and alteration omitted). Our conclusion that dancing is not protected speech forecloses these arguments. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“In a facial challenge to the overbreadth ... of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” (footnotes omitted)); id. at 494-95, 102 S.Ct. 1186 (explaining that where policy alleged to be vague “implicates no constitutionally protected conduct,” the vagueness challenge should be upheld “only if the enactment is impermissibly vague in all of its applications”). Because the kind of dancing at issue here is not expressive conduct, the Town’s regulation of it does not implicate the First Amendment and any further review of the Town’s action must be undertaken under a different provision of the Constitution. See Neinast v. Board of Trustees, 346 F.3d 585, 592 (6th Cir.2003) (concluding that conduct regulations adopted by public library did not directly regulate speech and thus did not implicate the First Amendment and were subject only to rational-basis review under other provisions of the Constitution), cert." }, { "docid": "4036118", "title": "", "text": "at “protecting . . . physical integrity” are not speech-oriented; but that, if appellee be assumed to have been engaging in symbolic speech, the Commonwealth was furthering a substantial government interest, within its power, unrelated to suppression of expression, and no greater than essential to further that interest, thus meeting the requirements of United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). While the facts in this case are clear and simple, the legal issues are complex. This is so because concepts of vagueness and overbreadth are fraternal, not identical twins, having affinity but separate identities and purposes; because the preliminary question, “When may one complain ? ”, requires a different analysis as to each concept; and because, as to the First Amendment challenge .of overbreadth, we confront the question which Mr. Justice Harlan noted had been “pretermitted” in clearer cases, i. e., whether wearing a flag is symbolic speech. Cowgill v. California, 396 U.S. 371, 372, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (concurring opinion). We shall order our analysis first by examining if appellee’s non-First Amendment attack on the statute’s facial vagueness may properly be considered, and then by proceeding to the merits of that attack. We shall then assess whether it is appropriate to subject the statute to a First Amendment overbreadth test, and continue with the detailed inquiries required by such a test. So, while the subject matter of this case is seat-of-the-pants, our analysis cannot be. Vagueness in a Non-First Amendment Context We first approach this case on the assumption that there are no First Amendment problems inhering in the statute or in appellee’s conduct. The threshold question then becomes, whether appellee’s conduct and the proscriptions of the statute are such that it is appropriate for a court to consider his facial challenge, in addition to his allegation that the law is vague as applied to him. The Commonwealth assumes there was no vagueness as applied to appellee, as did the Supreme Judicial Court. The unarticulated premise is that, whether or not the statute may be capable of unconstitutional" }, { "docid": "21503994", "title": "", "text": "U.S. 423, 443, 110 S.Ct. 1986, 109 L.Ed.2d 420 (1990) (noting that where confronted with questions relating to military operations the Court “properly defer[s] to the judgment of those who must lead our Armed Forces in battle”). The second relates to the constitutional power of Congress to “raise and support armies and to make all laws necessary and proper to that end.” United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Court has described this power as “broad and sweeping,” id., and has further noted Congress’ accompanying responsibility for “the delicate task of balancing the rights of servicemen against the needs of the military.” Solorio v. United States, 483 U.S. 435, 447, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). It is unquestionable that judicial deference to congressional decision-making in the area of military affairs heavily influences the analysis and resolution of constitutional challenges that arise in this context. The Court’s examination of the equal protection challenge leveled in Rost-ker provides an example. That case concerned a statute that required only males to register for selective service. The lower court had invalidated the statute as unlawful gender discrimination. 453 U.S. at 63, 101 S.Ct. 2646. In reversing, the Court focused its analysis entirely on the legislative record that led to Congress’ action. The Court discussed, in detail, the process Congress employed in considering the issue, its consultation with all interested parties, its serious consideration of the issues, including the constitutional implications, and its clear articulation of the basis for its decision. Id. at 72-80, 101 S.Ct. 2646. The Court then declared the district court’s analysis striking down the law “quite wrong” because the district court undertook “an independent evaluation of evidence rather than adopting an appropriately deferential examination of Congress’ evaluation of the evidence.” Id. at 82-83, 101 S.Ct. 2646. The Court’s treatment of First Amendment and Due Process challenges brought in this area similarly manifests this deference to congressional judgment. In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), a case involving vagueness and overbreadth challenges to provisions" }, { "docid": "10787205", "title": "", "text": "of doubtful relevance here, however. The four-part test it enunciated was devised to deal with O’Brien’s argument that the statute penalizing draft-card burning was “unconstitutional as applied to him because his act of burning his registration certificate was protected ‘symbolic speech’ within the First Amendment.” 391 U.S. at 376, 88 S.Ct. at 1678. The case at bar is quite different. First, appellee is not challenging Resolution 21436 as applied to him, but contends it is drafted so broadly that it will strike at the protected speech of other persons. Second, the kind of “symbolic speech” issue present in O’Brien is absent here. Unlike the statute challenged in O’Brien, Resolution 21436 is not attacked for implicating conduct, generally considered non-expressive, which the actor asserts to be communicative. Rather, the infirmity of the resolution arises because its overbreadth would prevent the establishments it covers from presenting various plays, musicals, ballets, and other items ordinarily regarded as expressive. Moreover, even if it is proper to apply the O’Brien test here, our result would be unchanged. As already shown, the county’s professed law enforcement interest could have been served by a regulation applying only to places where liquor is sold. Resolution 21436 therefore restricts first amendment freedoms to a greater degree than is essential to further the county’s constitutionally permissible goals. It thus fails to meet the final requirement of the O’Brien test. Because we find that Resolution 21436 is substantially overbroad, we affirm the judgment of the district court that the resolution is unconstitutional on its face. AFFIRMED. . The resolution exempted any “theater, concert hall or other similar establishment which is primarily devoted to theatrical performances.” This phrase was defined to apply to: a building, playhouse, room, hall or other place having seats so arranged that a body of spectators can have an unobstructed view of the stage, upon which theatrical or vaudeville performances or similar forms of artistic expression are presented, and where such performances are not incidental to the promoting of the sale of food, drink or other merchandise. The resolution made it a misdemeanor for any waiter, waitress or" }, { "docid": "18940188", "title": "", "text": "accurate information would not “significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective,” Justice Breyer concluded that “the statute as presently drafted works disproportionate constitutional harm” and “so violates the First Amendment.” Id. B In analyzing the constitutionality of § 704(b), Alvarez did not directly address the closely related section of the Stolen Valor Act, § 704(a), which is before us here. We first had occasion to consider a constitutional challenge to that section in United States v. Perelman, decided two months after the Supreme Court issued its opinion in Alvarez. 695 F.3d 866. Before considering the applicability of Alvarez, Perelman considered the defendant’s overbreadth challenge to § 704(a). Perelman rejected this argument by construing the statute narrowly as criminalizing only the unauthorized wearing of medals “when the wearer intends to deceive.” Id. at 870 (emphasis omitted). Perelman then considered whether § 704(a), as construed, would survive First Amendment scrutiny. Although the Alvarez plurality had applied “exacting scrutiny” to § 704(b), Perelman did not use this analytic framework because § 704(a) did not criminalize speech, but rather criminalized “the harmful conduct of wearing a medal without authorization and with intent to deceive.” Id. at 871. Perelman reasoned that “[e]ven if we assume that the intentionally deceptive wearing of a medal contains an expressive element — the false statement that T received a medal’— the distinction between pure speech and conduct that has an expressive element separates this . case from Alvarez.” Id. Because, in Perelman’s view, § 704(a) criminalized conduct, it was more akin to the impersonation statutes discussed in Alvarez, or statutes prohibiting “the unauthorized wearing of military uniforms.” Id. at 872 (citing Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970)). Presumably because of its determination that § 704(a) primarily criminalized conduct, but without further analysis, Perelman applied the test set forth in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20. L.Ed.2d 672 (1968) (upholding the conviction of a draft protester under a content-neutral law prohibiting knowing destruction of draft" }, { "docid": "21974189", "title": "", "text": "U.S. 367, 382, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (law banning the destruction of draft cards can be challenged under the First Amendment). Regulations governing expressive conduct are subject to intermediate scrutiny. O’Brien, 391 U.S. at 382, 88 S.Ct. 1673. As such, “conduct combining ‘speech’ and ‘non-speech’ elements can be regulated if four requirements are met: (1) the regulation ‘is within the constitutional power of the Government;’ (2) ‘it furthers an important or substantial governmental interest;’ (3) ‘the governmental interest is unrelated to the suppression of free expression;’ and (4) ‘the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ ” Wirzburger, 412 F.3d at 279 (quoting O’Brien, 391 U.S. at 377, 88 S.Ct. 1673.). In following this test, courts require states to present reasons for their electoral regulations. As is made clear in O’Brien and in Wirzburger, a state cannot justify an election regulation on the basis that it reflects an intent to help or punish a particular group. Rather, the reasons must be structural — that certain issues are, perhaps because of them complexity, not suitable for the initiative process, or that protecting minority interests, in some cases, requires a broader consensus than that of a simple majority. If a state’s justification is important or substantial, and the restriction is no greater than essential to fulfill that interest, then the state’s law is determined not to violate the First Amendment. This is not unlike the role courts fulfill in most election law cases. When deciding a challenge to laws affecting a political party’s First Amendment right of association, we “weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.” Timmons v. Twin Cities Area Netv Party, 520 U.S. 351, 355, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (holding that state interests in stability and the two-party system justified a state law barring any one candidate from appearing on two different" }, { "docid": "10787204", "title": "", "text": "that the interests that motivated the passage of Resolution 21436 could have been served just as well by a more narrowly drawn statute applicable only to liquor-selling establishments. Because the resolution encompasses so many more establishments than the topless bars that allegedly generated the need for the statute, a finding of substantial overbreadth is warranted, especially in view of the frequency with which the Supreme Court has emphasized the need for “narrow specificity” in regulations trenching on First Amendment freedoms. Moreover, the Second Circuit has invalidated, on over-breadth grounds, an ordinance banning topless dancing whose scope was essentially identical to that of Resolution 21436. Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir. 1975). Given these factors, the mere fact that the resolution arguably applies to “conduct” rather than “speech” is not sufficient to persuade us that the overbreadth problem is insubstantial. Appellants argue that Resolution 21436 should be held constitutional because it satisfies the four-part test of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). O’Brien is of doubtful relevance here, however. The four-part test it enunciated was devised to deal with O’Brien’s argument that the statute penalizing draft-card burning was “unconstitutional as applied to him because his act of burning his registration certificate was protected ‘symbolic speech’ within the First Amendment.” 391 U.S. at 376, 88 S.Ct. at 1678. The case at bar is quite different. First, appellee is not challenging Resolution 21436 as applied to him, but contends it is drafted so broadly that it will strike at the protected speech of other persons. Second, the kind of “symbolic speech” issue present in O’Brien is absent here. Unlike the statute challenged in O’Brien, Resolution 21436 is not attacked for implicating conduct, generally considered non-expressive, which the actor asserts to be communicative. Rather, the infirmity of the resolution arises because its overbreadth would prevent the establishments it covers from presenting various plays, musicals, ballets, and other items ordinarily regarded as expressive. Moreover, even if it is proper to apply the O’Brien test here, our result would be unchanged. As already shown," }, { "docid": "299406", "title": "", "text": "not rendered non-neutral simply because one ideologically defined group is more likely to engage in the proscribed conduct. See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (upholding a statutory prohibition on burning draft cards despite the fact that most violators would likely oppose the Vietnam War). For these reasons, we find that the Access Act is content and viewpoint neutral. The Act is justified without reference to the violator’s viewpoint or the content of his message. Therefore, we subject the Act to intermediate scrutiny. C. Intermediate scrutiny is required when a statute potentially regulates conduct that has protected expressive elements. The intermediate scrutiny test was first enunciated by the Supreme Court in O’Brien. O’Brien was convicted under a federal statute which made it a crime to destroy a draft card knowingly. In the Supreme Court O’Brien argued that his “act of burning his [draft card] was protected ‘symbolic speech’ within the First Amendment.” O’Brien, 391 U.S. at 376, 88 S.Ct. at 1678. The Supreme Court upheld the conviction, noting that Congress could regulate conduct that has an expressive element, given sufficient justification: even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a [draft card] is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeeeh element can justify incidental limitations on First Amendment freedoms. IcL The Court then laid down a test for reviewing a statute, such as the Access Act, that may incidentally affect speech as it regulates conduct. Under O’Brien’s test such a statute passes constitutional muster “if it [1] furthers an important or substantial governmental interest; if [2] the governmental interest is unrelated to the suppression of free expression; and if [3] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. at 1679." }, { "docid": "16034434", "title": "", "text": "Court must determine whether Hartford’s Ordinance is related to the suppression of expression. Pap’s A.M., 529 U.S. at 289, 120 S.Ct. 1382. “If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the ‘less stringent’ standard from O’Brien for evaluating restrictions on symbolic speech.” Id. at 289, 120 S.Ct. 1382 (citing United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), articulating the test for evaluating government regulation of conduct involving both “speech” and “non-speech” elements, in the context of draft card burning). Because the Ordinance bans all nudity within Hartford and does not specifically target expressive nude dancing, it is a facially neutral ordinance, and therefore the Court will evaluate it under the four-factor test for expressive conduct set forth in O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672. See SOB, Inc. v. County of Benton, 317 F.3d 856, 862 (8th Cir.2003); Heideman, et al. v. South Salt Lake City, 348 F.3d 1182, 1197 (10th Cir.2003); Peek-A-Boo Lounge, 337 F.3d at 1269 (all applying O’Brien test to public nudity ordinances). Under O’Brien, an ordinance is valid if (1) the government regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial government interest; (3) the government interest is unrelated to the suppression of free speech; and (4) the restriction is no greater than is essential to the furtherance of the government interest. O’Brien, 391 U.S. at 376-77, 88 S.Ct. 1673. A. The First and Fourth O’Brien Factors The Ordinance meets the first and fourth O’Brien factors. Regarding the first factor, there is no doubt that the Ordinance is within the government’s lawful powers. See Pap’s A.M., 529 U.S. at 296, 120 S.Ct. 1382 (the city’s “efforts to protect public health and safety are clearly within the city’s police powers”); Barnes, 501 U.S. at 567, 111 S.Ct. 2456. The fourth factor of the O’Brien test requires that any incidental restriction on alleged First Amendment freedoms be no greater than essential to further the government’s interest." }, { "docid": "9798411", "title": "", "text": "greater detail the three opinions that made up the five-member majority. Chief Justice Rehnquist, writing for Justices O’Connor and Kennedy, began his analysis by noting that the statements in Schad, Doran, and LaRue discussed above “support the conclusion of the Court of Appeals that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” Id. at 2460 (opinion of Rehnquist, C.J.). In order to determine “the level of protection to be afforded to the expressive conduct at issue,” the opinion analyzed the statute under the four-part inquiry of United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), the framework applied to symbolic speech. The second prong of that test requires that the statute further an important or substantial government interest. Although the Chief Justice’s opinion noted that “[i]t is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind,” the opinion nevertheless concluded that “the statute’s purpose of protecting societal order and morality is clear,” Barnes, 111 S.Ct. at 2461. and that such a purpose furthers a substantial governmental interest. Id. at 2462. O’Brien’s third prong requires that the interest to be protected is unrelated to the suppression of free expression. Here, the opinion stated that because the statute did not prohibit nude dancing, but rather all public nudity, the statute was not intended to suppress expression. Id. 111 S.Ct. at 2463. Finally, O’Brien requires that the restriction on free expression be no greater than is essential to the furtherance of that interest. Here, Chief Justice Rehnquist concluded that Indiana’s requirement of pasties and a G-string was the “bare minimum” necessary to achieve the state’s interest. Id. Justice Scalia concurred in the judgment, but not the reasoning, of the plurality. According to Justice Scalia, “the challenged regulation must be upheld, not because it survives some lower level of First-Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at" }, { "docid": "21092584", "title": "", "text": "is, before it is determined that the statute would be valid as applied.” Board of Trustees v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388 (1988). Permitting a facial challenge “would convert the use of the overbreadth doctrine from a necessary means of vindicating the plaintiffs own right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.” Id. at 485,109 S.Ct. at 3037. Because we conclude that the statutes are invalid as applied, it is appropriate that we not consider the overbreadth issue. See id. Similarly, the district court should have first considered the validity of the statutes as applied instead of reaching the overbreadth question in the first instance. Had the district court done so, it also would have found it unnecessary to consider the overbreadth issue. Accordingly, we must vacate that portion of the district court’s opinion and judgment that holds the statutes overbroad. III. Our conclusion that the statutes are unconstitutional undercuts Holden’s and Howard’s remaining argument that we should uphold the statutes under the incidental speech doctrine. “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). We will uphold an incidental regulation of speech if the regulation: is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377, 88 S.Ct. at 1679. Howard and Holden contend that the purpose behind the statutes is to prohibit all commercial activity at interstate rest areas, and this prohibition only incidentally regulates speech. The statutes, however, ban the sale of newspapers. In light of our discussion above, we cannot say that" }, { "docid": "4036132", "title": "", "text": "with violation of the statute before us, after having seen unpunished hundreds, perhaps thousands, of citizens with American flags sewn to various parts of their clothes, or flying in frayed condition from radio antennas of automobiles, or used as advertising in store windows, are expected to know that their similar actions — such as sewing a flag to the seat of one’s pants — could constitute contemptuous treatment. We conclude that, because “treats contemptuously” gives no sufficient warning to prospective offenders as to the reach of the law, affords law enforcers no clear guide for evaluation of actions, and offers neither judge nor jury any sufficient standards for inclusion and exclusion, the statute is impermissibly vague. The First Amendment and Overbreadth Thus far, we have approached this case with the assumption that the First Amendment is not involved. If it is, our analysis undergoes a considerable change from that which we employed in assessing the vagueness challenge. Our inquiry contains an added dimension — a judicial mandate to protect the favored status of rights to expression and association. Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). To phrase it differently, there is a greater solicitude that courts have, and ought to have, about the fear-inducing effect of any law which, by its very scope, constitutes a broad-gauged potential sanction against many who would seek to express themselves.’ So many cases have concerned themselves with this kind of anticipatory and open-ended threat of retaliation that a self-defeating jargon has crept into our jurisprudence — a terminology so brief, and easy, and common that it is all too quickly applied in complex factual settings by a casual reference to “chilling effect”. The rubric is in danger of smothering analysis of the reality. We have viewed the Massachusetts statute under which appellee was punished and have determined that it cuts a swath far beyond the individual defendant whose conduct is sought to be penalized. It is a double-edged sword of Damocles not only menacing the exercise of constitutional freedoms, but also serving to obstruct any future adjudications" }, { "docid": "15761215", "title": "", "text": "United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In that case the Court held; We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “non-speech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms * * * we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. pp. 376-377, 88 S.Ct. p. 1679. As in O’Brien, this court cannot accept the view that the actions charged can be labeled “speech” merely because defendant intends thereby to express an idea. However, even assuming the defendant’s conduct was sufficient to bring into play the protection of the First Amendment, the court finds the statute valid under the test set forth in O’Brien. Applying the test set forth in O’Brien the first consideration is whether the statute is within the constitutional power of the government. The United States Constitution, Article I, Section 8, sets forth the powers of the federal government. In addition to these powers the government has the power, set forth in the last paragraph of that section, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The" }, { "docid": "4036117", "title": "", "text": "in violation of the Fourteenth Amendment, and overbroad, in violation of the First Amendment. Goguen v. Smith, 343 F.Supp. 161 (D.Mass.1972). The Commonwealth appeals. The Commonwealth first contends that the questions of facial vagueness and overbreadth should not be considered, placing principal reliance on the well-known abstinence prescription of United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960) that “[one] to whom application of a statute is constitutional will not ’be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional,” and on Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Secondly, it specifically defends against the vagueness charge by pointing out that the statutory words “spell out design” and “describe conduct that affects the physical integrity of a flag of the United States”. Finally, the Commonwealth supports its law against the overbreadth attack by arguing that the statutory “desecration words”, being aimed at “protecting . . . physical integrity” are not speech-oriented; but that, if appellee be assumed to have been engaging in symbolic speech, the Commonwealth was furthering a substantial government interest, within its power, unrelated to suppression of expression, and no greater than essential to further that interest, thus meeting the requirements of United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). While the facts in this case are clear and simple, the legal issues are complex. This is so because concepts of vagueness and overbreadth are fraternal, not identical twins, having affinity but separate identities and purposes; because the preliminary question, “When may one complain ? ”, requires a different analysis as to each concept; and because, as to the First Amendment challenge .of overbreadth, we confront the question which Mr. Justice Harlan noted had been “pretermitted” in clearer cases, i. e., whether wearing a flag is symbolic speech. Cowgill v. California, 396 U.S. 371, 372, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (concurring opinion). We shall order" }, { "docid": "737415", "title": "", "text": "conceptually distinct and the Court believes that the crux of plaintiffs’ challenges to Ordinance 14.02(C) is that it is impermissibly vague. Turning to the merits of plaintiffs’ overbreadth arguments, the Court finds that it must be rejected. Ordinance 14.02(C) is appropriately limited and contains no substantial overbreadth such as would require its invalidation. C. Equal Protection Putting aside plaintiffs’ overbreadth and vagueness challenges for the moment, the crux of plaintiffs’ attack against Ordinance 14.02(C) is their claim that the Ordinance serves no legitimate governmental interest and acts only to dramatically limit access to protected speech. In this regard, the plaintiffs argue that Ordinance 14.02(C) is a content based regulation which must be analyzed under the four factors set forth in United States v. OBrien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O’Brien, the Supreme Court considered a First Amendment challenge to a conviction under federal law for the knowing destruction of a selective service registration certificate. The Court noted that in addressing such symbolic speech challenges, a Court should consider four factors: 1) whether the action taken is within the constitutional power of the government; and 2) whether the action furthers an important or substantial governmental interest; and 3) whether the governmental interest is unrelated to the suppression of free speech; and 4) whether the incidental restriction on free speech is no greater than is essential to further the governmental interest. Id. at 377, 88 S.Ct. at 1679. The plaintiffs argue that O’Brien provides the relevant criteria which must be addressed in considering the validity of Ordinance 14.02(C). Although O’Brien was a symbolic speech case and recognizing that the Supreme Court did not explicitly adopt the O'Brien test to zoning cases in Young, the Court believes, that the O’Brien factors provide a workable framework in which plaintiffs’ various claims may be analyzed. 1. The Governmental Power to Zone The first factor which O’Brien requires this Court to consider is whether the action taken by the City of Warren is within the constitutional power of the City. This is, perhaps, the easiest factor to address inasmuch as" } ]

[ { "docid": "8574981", "title": "", "text": "were inconsistent with testimony at trial. The Supreme Court was concerned that an accused would use the Miranda protections as a shield against contradiction of his own inconsistent statements. More recently, in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the court held that an accused’s failure to give an exculpatory story to the arresting officer may not be used to impeach an explanation offered at trial. The court focused on the insoluble ambiguity of silence. In the present case, there were no statements given by appellant to Agent Evans and the testimony elicited could in no way be used for impeachment purposes. This line of questioning stressing the appellant’s assertion of his constitutional rights only “cuts down on the privilege by making its assertion costly.” Griffin, supra, 380 U.S. at 614, 85 S.Ct. at 1233. However, we view the error here as harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The evidence against the appellant was overwhelming. Additionally, immediately after the occurrence in question (R.T. 78) and in its final charge (R.T. 246-247), the trial judge admonished the jury to completely disregard the testimony received from Agent Evans. The instructions to disregard were prompt and forceful. United States v. Altavilla, 419 F.2d 815 (9th Cir. 1969). This panel is concerned and alarmed about the increasing attempts by government counsel in this Circuit to make reference to or elicit testimony regarding an accused’s silence at the time of arrest. Government counsel are on the verge of the precipice and jeopardizing solid cases by such practice. The often-repeated words of Mr. Justice Sutherland, in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), again bear repeating: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a" } ]

[ { "docid": "22955631", "title": "", "text": "n. 48, 1409 & n. 50 (5th Cir.1992), petitions for cert. filed, (U.S. Dec. 4, 1992) (No. 92-6813) and 61 U.S.L.W. 3446 (U.S. Dec. 7, 1992) (No. 92-964); United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986). Therefore, any constitutional claim that the prosecution improperly commented on Laury’s pre-arrest silence has no merit. b Insofar as the prosecutor’s comments may be construed as commenting on Laury’s failure to come forward with his alibi immediately following his arrest, we must determine whether the prosecutor attempted to impeach Laury with silence, which is not permissible, or inconsistent statements, which is permissible. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that the due process clause prohibits impeachment of a defendant’s exculpatory story by using the defendant’s immediate post-arrest, post-Miranda warnings silence. Id. at 619, 96 S.Ct. at 2245. Doyle involved two defendants who, subsequent to their arrest and Miranda warnings, declined to make a statement. See id. at 611-14, 96 S.Ct. at 2241-43. At trial, the defendants presented an alibi that they had not previously disclosed to authorities. See id. at 613, 96 S.Ct. at 2242. On cross-examination, the prosecutor questioned the defendants about their failure to disclose their alibi to the police following their arrest. See id. at 613, 614 & n. 5, 615, 96 S.Ct. at 2242, 2243 & n. 5 (The Court held that the cross-examination violated the due process clause.). “The Court’s conclusion in [Doyle] was based on the ambiguity inherent in a defendant’s silence after he has been arrested and informed of his Miranda rights. A defendant’s silence may indicate that he is exercising the rights of which he has just been advised; it does not necessarily mean that a defendant does not have an exculpatory story to tell.” Cardenas, 806 F.2d at 572. However, in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), a defendant voluntarily gave a statement to the police, after arrest and Miranda warnings, and then told a different story at trial. Id. at 405-09, 100 S.Ct. at" }, { "docid": "22592528", "title": "", "text": "over time. Moreover, the fact that they drove the truck overweight, risking a likely ticket and inspection, indicates a lack of knowledge. Nevertheless, evidence of the defendants’ circuitous route and the timing of their trip supported the jury’s conclusion that they had picked up a load of marihuana. The jury was free to choose among reasonable eonstruc- tions of the evidence, Bell, 678 F.2d at 649; the focus is not on “whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). After weighing the evidence, the jury chose to disbelieve the defendants’ story and concluded that they were guilty beyond a reasonable doubt. There was sufficient evidence to support that conclusion. IV. Pennington also argues that the prosecution improperly commented on his post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). Under Doyle, the Due Process Clause prohibits the impeachment of a defendant’s exculpatory story by using the defendant’s post-arrest, post-Miranda silence. Although “virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation,” a prosecutor’s comments must be viewed in context. United States v. Shaw, 701 F.2d 367, 381-82 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). The test is whether the “manifest intent” of the remarks was to comment on the defendant’s silence, or (stated another way) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence. Id. at 381. And the defendant’s willingness to give some statements after arrest does not give the prosecutor the right to impeach him by commenting on what he did not say. United States v. Laury, 985 F.2d 1293, 1304 n. 10 (5th Cir.1993). The relevant testimony comes from the government’s examination of Welsh: Q: What did Mr. Pennington tell you when you asked him" }, { "docid": "3145559", "title": "", "text": "defense. By failing to raise this issue prior to trial, Oscar waived the right to assert it on appeal. United States v. Viserto, 596 F.2d 531, 538-539 (2d Cir.), cert. denied, 444 U.S. 841, 100 S.Ct. 80, 62 L.Ed.2d 52 (1979); United States v. Easom, 569 F.2d 457 (8th Cir. 1978); United States v. Coppola, 526 F.2d 764 (10th Cir. 1975). See also United States v. Rodriguez, 556 F.2d 638 (2d Cir. 1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1233, 55 L.Ed.2d 762 (1978). Miladys Nunez-Rios claims that the prosecutor’s argument in his closing statement that her silence, when confronted with the contents of her purse following arrest, but prior to receiving Miranda warnings, could be considered as impeachment of her testimony, infringed her Fifth Amendment right to remain silent. The Government contends that the comment was proper, since it concerned Miladys’ silence prior to receiving Miranda warnings, and that in any event the comment constituted harmless error due to the curative instruction given by the trial court. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the prosecutor sought to impeach the defendants’ testimony by asking them why they had not offered the exculpatory story which they presented at trial to the arresting officer after receiving Miranda warnings. The Supreme Court held that this questioning contravened the defendants’ Fourteenth Amendment rights. The Court reasoned that because of the Miranda requirement that a person be advised of his right to remain silent and to an attorney, “every post-arrest silence is insolubly ambiguous . .” since “[s]ilence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights.” Id. at 617, 96 S.Ct. at 2244. The Court elaborated, Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at" }, { "docid": "5800400", "title": "", "text": "replied, “No, sir, he declined to discuss the matter.” Defendant immediately moved for a mistrial. His motion was denied. Appellant urges that this denial was improper as Boe’s statement constituted an impermissible reference to an accused’s exercise of his right to remain silent. THE ISSUES AND THE LAW It is now well settled that prosecutorial comment on silence for substantive or impeachment value is constitutionally prohibited. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the Supreme Court has not ruled on this point, the Fifth Circuit has decided that the harmless error doctrine is applicable to the constitutional violation of comment on silence for impeachment. United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir. 1978); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). We will assume for purposes of this analysis that Boe’s response constituted a Doyle violation. Therefore, the first issue we address on this appeal is whether the government’s Doyle violation is harmless. We note that such a determination must be made on a “case by case basis.” United States v. Davis, 546 F.2d 583, 594-95 & n. 31 (5th Cir.) cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). “The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.” United States v. Meneses-Davila, 580 F.2d 888, 890 (5th Cir. 1978). A panel of this Court recently tried to harmonize our cases concerning Doyle violations and the harmless error test. That panel concluded that our cases fall into three categories: When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibillty of the exculpatory story to the defendant’s ostensibly inconsistent act" }, { "docid": "16506950", "title": "", "text": "602-03. Further, during closing argument the prosecutor made the following comment: Let’s get on Glenn Passman’s witnesses, which if you noticed, he made no comments about those two upstanding people from Mississippi who testified____ Id. at 683. Passman contends that Chief Laird’s testimony and the prosecutor’s closing argument violated his due process rights. B. In Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91 (1976), the Court held that cross-examination of a defendant concerning his post-arrest silence, offered to impeach the defendant on the theory that silence is inconsistent with an exculpatory story told at trial, deprived the defendant of the fundamental fairness guaranteed by the due process clause. See also Wainright v. Greenfield, — U.S.-, 106 S.Ct. 634, 638, 88 L.Ed.2d 623 (1986); United States v. Shavers, 615 F.2d 266, 269 (5th Cir.1980) (post-arrest silence may not be used as evidence of guilt or for impeachment purposes); United States v. Mireles, 570 F.2d 1287, 1292 (5th Cir.1978). The Doyle rule “is bottomed on the insoluble ambiguity of post-arrest silence that necessarily results when a defendant has been read his Miranda rights; the defendant’s silence may well indicate, not that he has no exculpatory story to tell, but that he is simply exercising the rights to which he has been advised.” United States v. Blankenship, 746 F.2d 233, 237 (5th Cir.1984); see Stokes v. Procunier, 744 F.2d 475, 479 (5th Cir. 1984). On the other hand, a testifying defendant may be impeached with evidence of pre-arrest, pre-Miranda warning silence, because “no governmental action [has] induced [the defendant] to remain silent.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980). Doyle is applicable to this case, because Passman’s case was pending in the trial court (he had not yet been sentenced) at the time Doyle was decided. Price v. King, 714 F.2d 585, 588 (5th Cir.1983). As a threshold matter, we review the state’s contention that Doyle is inapplicable because Chief Laird’s testimony may have concerned Passman’s pre-arrest silence. See Jenkins, 447 U.S. at 240, 100 S.Ct. at 2130. The" }, { "docid": "10555813", "title": "", "text": "moved for a mistrial, arguing that the prosecutor improperly commented on Dodd’s right to remain silent. The district court denied the motion, finding that the comment was not a remark on Dodd’s right to remain silent, but referred only to “the context” of Dodd’s statement upon arrest. We review a district court’s refusal to declare a mistrial based on a prosecutor’s comment regarding a defendant’s right to remain silent for abuse of discretion. United States v. Delgado, 56 F.3d 1357 (11th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 713, 133 L.Ed.2d 667 (1996). A comment is deemed to be a reference to a defendant’s silence if it was the prosecutor’s manifest intention to refer to the defendant’s silence or if it was of such a character that the jury would “naturally and necessarily” understand it to be a comment on a defendant’s silence. United States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir.), opinion modified in part by, 801 F.2d 378 (11th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). It is well established that a prosecutor cannot comment on a defendant’s post-Miranda silence to impeach exculpatory testimony on the ground that the defendant did not explain his conduct at the time of his arrest. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, defendants testified at trial to exculpatory explanations for their participation in a drug transaction. Id. at 613, 96 S.Ct. at 2242-43. On cross-examination, the prosecutor impeached their testimony by asking why they had not offered this information upon arrest. Id. The Supreme Court held that this questioning violated the Due Process Clause of the Fourteenth Amendment because Miranda warnings contain implicit assurance that silence will carry no penalty. Id. at 617-18, 96 S.Ct. at 2244-45. Following this reasoning, the Court, in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) held that Doyle is inapplicable where the prosecutor’s comments “merely inquire[ ] into prior inconsistent statements.” Anderson, 447 U.S. at 408, 100 S.Ct. at 2182. Such comments, the Court explained," }, { "docid": "22955630", "title": "", "text": "left. None of the other witnesses said [Laury] left, said he was there all the time. Yeah, they couldn’t remember that. They didn’t tell the FBI he had an alibi. He doesn’t tell the FBI he has an alibi, there’s no talk. Id. at 373. The prosecutor’s interrogation of Laury and his comment — “[h]e doesn’t tell the FBI he has an alibi” — were sufficiently broad that they may be construed as commenting on Laury’s failure to come forward with his alibi (a) prior to arrest, (b) immediately after his arrest and Miranda warnings, and (c) during the time period prior to trial but following his arrest. a We first address whether any prosecutorial comment aimed at Laury’s prearrest silence was improper. There is no constitutional violation where the prosecution uses pre-arrest silence to impeach a criminal defendant because “no governmental action [has] induced [the defendant] to remain silent.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980); see also United States v. Collins, 972 F.2d 1385, 1408 n. 48, 1409 & n. 50 (5th Cir.1992), petitions for cert. filed, (U.S. Dec. 4, 1992) (No. 92-6813) and 61 U.S.L.W. 3446 (U.S. Dec. 7, 1992) (No. 92-964); United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir.1986). Therefore, any constitutional claim that the prosecution improperly commented on Laury’s pre-arrest silence has no merit. b Insofar as the prosecutor’s comments may be construed as commenting on Laury’s failure to come forward with his alibi immediately following his arrest, we must determine whether the prosecutor attempted to impeach Laury with silence, which is not permissible, or inconsistent statements, which is permissible. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that the due process clause prohibits impeachment of a defendant’s exculpatory story by using the defendant’s immediate post-arrest, post-Miranda warnings silence. Id. at 619, 96 S.Ct. at 2245. Doyle involved two defendants who, subsequent to their arrest and Miranda warnings, declined to make a statement. See id. at 611-14, 96 S.Ct. at 2241-43. At trial, the defendants" }, { "docid": "12763004", "title": "", "text": "444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979), quoting United States v. Warren, 578 F.2d at 1065. Thus, the “standard boarding” of the MISS PHYLLIS “to ensure compliance with all applicable U.S. laws” was consistent with the law as interpreted by this court. Once on board, the odor of marijuana, detected by the ensign in the boat’s pilothouse while he was being conducted around the vessel by its master, R. vol. 3, p. 174, justified the further investigation that revealed the marijuana in the ship’s hold and stacked in the crew’s quarters. United States v. Williams, 617 F.2d at 1086-87. See e. g., United States v. Hicks, 624 F.2d 32, 33-34 & n.2 (5th Cir.1980); United States v. Mann, 615 F.2d 668, 670 (5th Cir. 1980). Consequently, no Fourth Amendment violation occurred. IV. Comment on Defendant’s Silence Finally, Espinosa-Cerpa contends that his Miranda rights and his right to a fair trial were breached by the testimony of the arresting officer, given during the prosecution’s case-in-chief, in which he twice commented on the MISS PHYLLIS crew’s silence following their being arrested and given Miranda warnings. The offensive exchange between court, counsel and witness is reproduced in the margin. Appellant is correct in asserting that the witness’ comments were in derogation of appellant’s Miranda and Fourteenth Amendment due process rights. Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 1624 n.37, 16 L.Ed.2d 694 (1966) (prosecution may not use defendant’s silence at trial); United States v. Edwards, 576 F.2d 1152 (5th Cir.1978); Chapman v. United States, 547 F.2d 1240, 1242-43 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (comment is violation of due process). See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (reference to defendant’s silence in cross-examination for impeachment purposes violates due process). That the prosecution may not have intended that the witness make such a comment neither absolves the sin nor eliminates any potential prejudice. United States v. Staller, 616 F.2d 1284, 1291 (5th Cir.1980); United States v. Matos, 444 F.2d 1071, 1072 (7th" }, { "docid": "7621930", "title": "", "text": "436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court stated that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Id. at 468 n. 37, 86 S.Ct. at 1625 n. 371; see United States v. Hale, 422 U.S. 171, 182-83, 95 S.Ct. 2133, 2139-40, 45 L.Ed.2d 99 (1975) (Douglas, J., and White, J., concurring). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court extended this principle of Miranda to the cross examination context, holding that a defendant’s post-arrest silence could not be used to impeach his exculpatory story without violating due process. Although Stokes raised the issue of improper prosecutorial comment on direct appeal, the Court of Criminal Appeals did not discuss it in the opinion affirming his conviction. The Texas courts denied Stokes’ petition for habeas relief without opinion. The district court referred the issue of improper comment on Stokes’ post-arrest silence to the magistrate for a hearing and findings. The magistrate made alternative findings, which the district court adopted. First, because of defense counsel’s failure to object, review of the claim was barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Second, the violation was harmless beyond a reasonable doubt. See, e.g., United States v. Shaw, 701 F.2d 367 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984); Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). If defense counsel had not explored with the arresting officer possible reasons for Stokes’ post-arrest silence, we do not doubt that the prosecutor would not have emphasized the silence as extensively as he did on redirect and during final arguments. Nevertheless, the prosecutor in his case-in-chief initiated the comment on Stokes’ silence by asking if he had said anything else after he was arrested and advised" }, { "docid": "15595389", "title": "", "text": "story was today? [Defense counsel]: Again, just for the record, I have to object again. THE COURT: Overruled. [Rodriguez]: Yes, sir. The government argues that, given the time period that elapsed between this offense and Rodriguez’ arrest, it sought to clarify the timing of his claim, as opposed to commenting on the substance of the claim. The government contends that its inquiry “compared the reasonableness of the two year delay in accusing the informant of threatening him with Rodriguez’ credibility.” According to the government, the prosecutor’s inquiry related to Rodriguez’ pre-arrest silence, not to his post-arrest silence, and Rodriguez has failed to meet his burden of proving that the sole purpose of the inquiry was to comment upon Rodriguez’ post-arrest silence. In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment of a defendant’s exculpatory story, told for the first time at trial, by using the defendant’s post-arrest silence. A prosecutor’s or witness’s remarks constitute comment on a defendant’s silence if the manifest intent was to comment on the defendant’s silence, or if the character of the remark was such that the jury would naturally and necessarily so construe the remark. United States v. Carter, 953 F.2d 1449, 1464 (5th Cir.1992), cert. denied sub nom., Hammock v. United States, — U.S. -, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992) (citing United States v. Shaw, 701 F.2d 367,381 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984)). Although virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation, a prosecutor’s comments must be evaluated in context. United States v. Laury, 985 F.2d 1293, 1303 (5th Cir.1993) (internal quotation and citations omitted). In Chapman v. United States, 547 F.2d 1240 (5th Cir.1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), the Court classified Doyle violations into three categories: When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at" }, { "docid": "17246642", "title": "", "text": "direct examination by the government, constituted an impermissible reference to his right to remain silent. He bases this assertion on the fact that after he and co-defendant Harrison were arrested and given their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Harrison inquired as to the type and length of sentence he would receive. Wagers remained silent after his Miranda rights were given. In making this assertion, Wagers relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the Supreme Court established that it is a violation of a defendant’s due process rights to allow his silence at the time of arrest and after he has received his Miranda warning to be used to impeach an exculpatory story given for the first time at trial. Id. at 617-18, 96 S.Ct. at 2244-45. In cases de cided pursuant to Doyle, the courts have uniformly condemned even indirect reference to a defendant’s post-arrest silence. United States v. Shaw, 701 F.2d 367, 381. (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984); United States v. Johnson, 558 F.2d 1225 (5th Cir.1977); United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). However, testimony on direct examination by a government witness that a defendant had been given the Miranda rights, followed by neither questions as to what defendant said nor by testimony concerning that defendant’s failure to make statements after the giving of said rights, does not constitute improper comment upon that defendant’s right to remain silent. United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981); United States v. Warren, 578 F.2d 1058, 1073 (5th Cir.), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). As in the present case, the issue in Jonas and Warren, was the question of improper comment on the right of silence. In Jonas and Warren, the government witness gave a narrative of the arrest process and described the giving or lack of responses" }, { "docid": "17246643", "title": "", "text": "(5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984); United States v. Johnson, 558 F.2d 1225 (5th Cir.1977); United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). However, testimony on direct examination by a government witness that a defendant had been given the Miranda rights, followed by neither questions as to what defendant said nor by testimony concerning that defendant’s failure to make statements after the giving of said rights, does not constitute improper comment upon that defendant’s right to remain silent. United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981); United States v. Warren, 578 F.2d 1058, 1073 (5th Cir.), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). As in the present case, the issue in Jonas and Warren, was the question of improper comment on the right of silence. In Jonas and Warren, the government witness gave a narrative of the arrest process and described the giving or lack of responses by the defendants. The Fifth Circuit stated in Jonas that: Appellant’s contention regarding this issue was answered by this Court in United States v. Warren, supra, 578 F.2d at 1072-73. There, this Court held that admission of testimony that the defendants were advised at the time of their arrest of their right to remain silent did not constitute a comment on the exercise of the defendants’ right to remain silent and thus reversal was not required. No reversal is required in this case. 639 F.2d at 205. We find that the facts of this case do not evince a violation of appellant’s due process rights pursuant to Doyle. Agent Best testified only to the questions that were directed to him by appellant Harrison. In this testimony, he made no reference, explicit or implicit, as to the silence of appellant Wagers. Furthermore, the government did not raise the fact of Wagers’ post-arrest silence by questions, other testimony, or comment in the argument. In fact, Wagers makes no allegation that the government in any manner referred to," }, { "docid": "17246641", "title": "", "text": "my recollection from what I have been furnished, I was given no statements, post-arrest statements. Is he going to testify about what Mr. Wagers said? (Counselor Zirhusen nods in the negative.) Mr. Smith: I believe that this is a comment on Mr. Wagers’ silence after he was read his rights, and I think that this is error in this matter. Mr. Zirhusen: There was no comment regarding anything he said or did not say anything. Mr. Smith: It is a direct comment on his silence because the jury is expecting to hear what Mr. Wagers said. And, if they put nothing on that he said, that is a direct comment on his silence after he was read his rights. The Court: Well, it probably shouldn’t have been brought up since the two were there together. If you want me to tell the jury that Mr. Wagers was not required to make a statement, I will, but if you don’t want me to, I won’t say anything. Wagers contends that the testimony of Agent Best, on direct examination by the government, constituted an impermissible reference to his right to remain silent. He bases this assertion on the fact that after he and co-defendant Harrison were arrested and given their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Harrison inquired as to the type and length of sentence he would receive. Wagers remained silent after his Miranda rights were given. In making this assertion, Wagers relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the Supreme Court established that it is a violation of a defendant’s due process rights to allow his silence at the time of arrest and after he has received his Miranda warning to be used to impeach an exculpatory story given for the first time at trial. Id. at 617-18, 96 S.Ct. at 2244-45. In cases de cided pursuant to Doyle, the courts have uniformly condemned even indirect reference to a defendant’s post-arrest silence. United States v. Shaw, 701 F.2d 367, 381." }, { "docid": "23141966", "title": "", "text": "In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that it was fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him. A comment is deemed to be a reference to a defendant’s silence if either: (1) it was the prosecutor’s manifest intention to refer to the defendant’s silence; or, (2) the remark was of such a character that the jury would “naturally and necessarily” take it to be a comment on defendant’s silence. United States v. Shaw, 701 F.2d 367 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). The court must consider the intent of the prosecutor and the character of the remarks in the context in which they occur. United States v. Forrest, 620 F.2d 446 (5th Cir.1980). The burden of proving such intent is on the defendant. United States v. Austin, 585 F.2d 1271 (5th Cir.1978). The standard is strict; virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation. 701 F.2d at 382. Agent George’s testimony, that prior to answering the questions Mr. Junker stared at his wife, is clearly not a comment on Mrs. Junker’s right to remain silent. This evidence was relevant to show Mr. Junker’s state of mind and behavior during the course of the interview. When the above testimony is viewed in the context in which it was given, we cannot hold that it was the prosecutor’s manifest intention to comment on Mrs. Junker’s silence or that the jury would “naturally and necessarily” construe the evidence as a comment on Mrs. Junker’s silence. We find no error in the Court’s denial of defendant Rosemarie Junker’s motion for a mistrial. V.(g) CHANGED THEORY Lombardi complains that the prosecution changed or modified its theory of his role in the charged conspiracy during the course of the trial and thereby violated his Fifth Amendment right to due process and fundamental fairness. This argument is based" }, { "docid": "22299794", "title": "", "text": "you didn’t attempt to question him further? A. No, sir, I did not. Shaw claims that Officer Pennington’s testimony was an impermissible comment on his silence following arrest under Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37,16 L.Ed.2d 694 (1966). The government contends that the officer’s statement was gratuitous, merely a recitation of events, and did not constitute an invitation to the jury to infer Shaw’s guilt from the fact of his silence. Because it is “fundamentally unfair” simultaneously to afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him, prosecutorial comment on silence for either substantive or impeachment value is constitutionally prohibited. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). The alternative tests for determining whether a prosecutor’s or witness’s remarks constitute comment on a defendant’s silence are whether the “manifest intent” was to comment on the defendant’s silence or, alternatively, whether the character of the remark was such that the jury would “naturally and necessarily” construe it as a comment on the defendant’s silence: United States v. Jones, 648 F.2d 215, 218 (5th Cir.1981); United States v. Fricke, 684 F.2d 1126, 1133 (5th Cir.1982). Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980), and the burden of proving such intent is on the defendant. United States v. Austin, 585 F.2d 1271, 1280 (5th Cir.1978). In numerous cases this Court has held that mention of the fact of the defendant’s silence following arrest by the prosecutor in his case in chief is a violation of constitutional dimension. See Chapman v. United States, 547 F.2d 1240, 1245 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (question by prosecutor eliciting remark that the defendant said nothing following arrest constituted error); United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977) (testimony that the defendant expressed" }, { "docid": "23339655", "title": "", "text": "they lie? Why did Raul Hernandez say, “No cargo — no cargo” when the Customs people got on the boat? — When it’s everywhere? Why didn’t he say “Thank God you’re here. We’ve got all this pot. We hijacked this boat. I don’t know who it belongs to. We just happened to be out in the dead of night in Apollo Beach, a residential area, flashing lights — these people brought us on a boat and they were flashing lights at us. And we didn’t —you know, gee, we didn’t know that the boat — I mean, obviously, we thought it was legal, because all the lights were out in the shrimper and they wanted us to see them so they turned all the lights out.” Defendants contend that prosecutorial use of their silence to impeach the exculpatory story offered at trial violated due process rights recognized in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Defendants cite as additional support three decisions in which this Court interpreted and applied Doyle to find reversible error in prosecutorial comment on defendants’ silence. United States v. Meneses-Davila, 580 F.2d 888 (5th Cir. 1978); Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); United States v. Luna, 539 F.2d 417 (5th Cir. 1976). None of the case support adduced by defendants controls the question before us. In each of those cases, the prosecutor commented on a defendant’s failure to exculpate himself after he had been arrested and given Miranda warnings. The Doyle opinion emphasizes the significance of Miranda warnings to the constitutional dimension of improper prosecutorial comment: The warnings mandated by that case, . require that a person taken into custody be advised immediately that he has the right to remain silent, . Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. 426 U.S. at 617, 96" }, { "docid": "15145467", "title": "", "text": "as to death penalty, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972). This is not the type of matter proper for habeas corpus relief. Pleas v. Wainwright, supra. See Heads v. Beto, 468 F.2d 240, 241 (5th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1454, 35 L.Ed.2d 704 (1973). Mercado next argues constitutional error in what he alleges to be the prosecutor’s comments concerning his silence at the time of arrest. In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Supreme Court, exercising its supervisory power over the federal courts, held under the circumstances of the case that it was prejudicial error for a trial court to permit cross-examination of a defendant concerning his silence during police interrogation. In a pre-Hale decision, United States v. Ramirez. 441 F.2d 950, 953-954 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971), this Court had permitted what Hale condemned. The Court in Hale, however, left open the broader issue as to whether such conduct reached a constitutional level. In Doyle v. Ohio, - U.S. -, 96 S.Ct. 2240, 49 L.Ed.2d 91, 44 U.S.L.W. 4902 (1976), an appeal from a state conviction, the Supreme Court answered the constitutional question and held “that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” - U.S. at -, 96 S.Ct. at 2245, 44 U.S.L.W. at 4904 (footnote omitted). Doyle involved an attempt to impeach the defendant-witness’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. Although Mercado testified, the prosecutor in cross-examination did not refer to defendant’s silence at any time, nor in argument did the prosecutor suggest that silence impeached defendant’s trial testimony. There was no objection to the prosecutor’s remarks. See Higgins v. Wainwright, 424 F.2d 177, n178 (5th Cir.), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27" }, { "docid": "23141965", "title": "", "text": "to the jury room, please. (Whereupon, the jury retired from the courtroom, after which the following proceedings were had.) Mr. Manchell: Your Honor, at this point I would like to ask for a mistrial. I think the comments of Agent Georges definitely reflect on my client, Rose Marie Junker, exercising her right to remain silent. It violates Doyle versus Ohio, and I believe they solicited the question twice from him that Joe Junker stared at her and looked at her, and the question was addressed to both of them is what his testimony was, and that she failed to respond to it, and that he chose to respond. I believe that testimony going to the jury, no matter what the court has stated to the jury, is a reflection on her failure to make a comment either to correct or add to what Joe Junker said. I believe it violates her Fifth Amendment right. On that basis I would ask for a mistrial. The Court: All right, the motion is denied. Bring in the jury.” In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that it was fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him. A comment is deemed to be a reference to a defendant’s silence if either: (1) it was the prosecutor’s manifest intention to refer to the defendant’s silence; or, (2) the remark was of such a character that the jury would “naturally and necessarily” take it to be a comment on defendant’s silence. United States v. Shaw, 701 F.2d 367 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984). The court must consider the intent of the prosecutor and the character of the remarks in the context in which they occur. United States v. Forrest, 620 F.2d 446 (5th Cir.1980). The burden of proving such intent is on the defendant. United States v. Austin, 585 F.2d 1271 (5th Cir.1978). The standard is strict;" }, { "docid": "4367244", "title": "", "text": "has adopted this position and thereby eviscerated Williams. United States v. Andersen, 940 F.2d 593, 595-97 (10th Cir.1991). VIII. Doyle Violations In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court clarified that the Due Process Clause embraces the right not to have one’s post-arrest, post-MVawcia-warning silence used for impeachment at trial. The following year, in Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), this Circuit reexamined its existing precedent on post-Miranda silence in light of Doyle. In doing so, we found it necessary to address an issue expressly reserved by the Supreme Court in Doyle: whether the doctrine of harmless constitutional error applied to Doyle violations. Id. at 1247-48; Doyle, 96 S.Ct. at 2245. Our holding that the doctrine did apply led us to categorize our prior cases according to the following principles: “When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. [citing United States v. Luna, 539 F.2d 417 (5th Cir.1976) (per curiam); United States v. Harp, 536 F.2d 601 (1976) (per curiam)] When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming, [citing United States v. Impson, 531 F.2d 274 (5th Cir.1976) ]” Chapman, 547 F.2d at 1249. Hammack refers us to three instances during his trial that he claims constitute Doyle violations: (1) During the government’s case-in-chief, when the prosecutor was conducting his direct examination of Officer Campbell, the following exchange (Comment 1) took place: “Q: Now, can" }, { "docid": "6226690", "title": "", "text": "the Customs vessel is that he thought the light was coming from “his friends.” At trial, the prosecutor asked the Customs officer whether any of the defendants had made any statements. Ruz-Salazar moved for a mistrial on the ground that an unlawful inference would arise that he had remained silent in the face of Miranda warnings. At a sidebar conference, the prosecutor indicated that he asked the question in this form only to avoid leading the witness and that he certainly would not ask a question such as “Did the defendant, Ruz-Salazar make any statements?” Nevertheless, after the officer described the statement made by Torres, the following exchange occurred: Prosecutor: Did anyone else make any statements while aboard the vessel? Officer: No. Ruz-Salazar contends that this constituted an unconstitutional comment on his right to remain silent and mandates the reversal of his conviction. The courts have made it clear that it is impermissible to use a defendant’s post-Miranda silence for impeachment or for substantive evidence of guilt. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). This principle has been known for nearly 10 years. In light of the sidebar conference and the prosecuting attorney's response to the trial judge, his conduct in asking this question was inexcusable and is a clear violation of the Doyle rule. Nevertheless, this constitutional violation is, like others, subject to application of the harmless error rule. As this Court has said: “Chapman attempted to harmonize Fifth Circuit case law concerning Doyle violations and the harmless error test by establishing three categories of cases.” Alderman v. Austin, 695 F.2d 124, 125 (5th Cir., Unit B, 1983). The three categories of cases in Chapman all dealt with testimony relating to a defendant’s silence in cases in which he had made an exculpatory defense. They are: When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the" } ]

[ { "docid": "14164595", "title": "", "text": "McMAHON, District Judge. Omnipoint Communications, Inc. (“Om-nipoint”) brings this action against the Common Council of the City of Peekskill, the City of Peekskill and Richard DiMar-zo, the Director of Public Works of the City of Peekskill, alleging violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 382 (the “TCA”) and Article 78 of the New York Civil Practice Laws and Rules for the Common Council's denial of Omnipoint’s application for a special permit to install a personal wireless service facility (three rooftop antennas and a small equipment cabinet) atop River House, a residential apartment building located at 150 Overlook Avenue, Peekskill, New York. Omnipoint alleges a violation of Section 704 of the TCA, 47 U.S.C. § 332(c)(7)(B)(i)(I), alleging that the defendants unreasonably discriminated among providers of functionally equivalent services (Count 1); a violation of 47 U.S.C. § 332(c) (7)(B) (ii) alleging that the defendants caused unreasonable delay in their processing of Omnipoint’s application (Count 2); a violation of 47 U.S.C. 332(c)(7)(B)(iii) alleging that the Common Council’s decision was not supported by substantial evidence (Count 3); a violation of 47 U.S.C. 332(c)(7)(B)(iv) alleging that defendants impermissibly based their decision on the basis of the unsupported fears of local residents with respect to radio frequency emissions from the facility (Count 4). Omnipoint also alleges a violation of Article 78 of the Civil Practice Laws and Rules of New York, N.Y. CPLR § 7803(4) (Count 5), and the Peekskill Zoning Code, Section 300-56 for impermissibly amending the Zoning Code by substituting the Common Council for the Director of Public Works as the officer that issues special permits (Count 6). Omnipoint seeks injunctive relief vacating, annulling and setting aside Common Council’s Resolution denying Omnipoint’s application, and further requests this Court to direct the issuance of a Special Permit, building permits and any other permits, approvals or licenses necessary for erection and construction of the Facility. Omnipoint also sues for declaratory relief, costs and attorney’s fees. Omnipoint moves for summary judgment under Counts 1, 2, 3, 5 and 6 of its Complaint. No motion was made as to Count 4. For the reasons" } ]

[ { "docid": "23177845", "title": "", "text": "rational, or is arbitrary or capricious or not supported by substantial evidence....” WEOK Broad. Corp. v. Planning Bd. of Lloyd, 79 N.Y.2d 373, 383, 583 N.Y.S.2d 170, 592 N.E.2d 778 (1992). This standard of review is essentially identical to, and therefore in conformance with, the requirements set forth in the TCA that “[a]ny decision ... to deny a request to place ... personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” 42 U.S.C. § 332(c)(7)(B)(iii). See Cellular Tel. Co., 166 F.3d at 494. “Whether an administrative agency determination is shored up by substantial evidence is a question of law to be decided by the courts.” 300 Gramatan Ave. Assocs. v. State Div. Of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 (1978). Sprint erroneously claims that the Board could not deny its site plan because the local zoning law permits public utilities at Sprint’s proposed tower sites, and wireless telephone companies are public utilities under New York law. See Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993). While “SEQRA review may not serve as a vehicle for adjudicating legal issues concerning compliance with local government zoning,” WEOK Broad. Corp., 79 N.Y.2d at 382, 583 N.Y.S.2d 170, 592 N.E.2d 778 (internal quotations omitted), and the Planning Board may not “disapprove a [permitted] use under the guise of denying site plan approval,” Mialto Realty, Inc. v. Town of Patterson, 112 A.D.2d 371, 491 N.Y.S.2d 825, 825 (2d Dep’t 1985) the Board is still vested with considerable discretion in deciding whether to approve or reject a proposed project. See, e.g., Exxon Corp. v. Gallelli, 192 A.D.2d 706, 597 N.Y.S.2d 139, 139 (2d Dep’t 1993); Orchards Assocs. v. Planning Bd. of N. Salem, 114 A.D.2d 850, 494 N.Y.S.2d 760, 762 (2d Dep’t 1985). Sprint therefore does not have an absolute right to construct its towers simply because their construction constitutes a permitted use. We also reject Sprint’s related argument that by including “utility substations” in the local zoning law, the Ontario lawmakers have" }, { "docid": "14164622", "title": "", "text": "provide for a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition.... ” Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir.1999) (quoting a TCA Conference Committee report found at H.R. Conf. Rep. No. 104-458, at 206 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 124). In order to foster the growth of the telecommunications industry, Section 332 of the TCA requires, inter alia, that a denial of a request to build a personal wireless service facility must be “in writing and supported by substantial evidence.” 47 U.S.C. § 332(c)(7)(B)(iii). Further, local governments must decide any request for authorization to construct a personal wireless service within a “reasonable period of time,” 47 U.S.C. § 332(c)(7)(B)(ii), and are prohibited from “unreasonably discriminating” among providers of functionally equivalent services, 47 U.S.C. § 332(c)(7)(B)(i)(I). Omnipoint claims that defendants have clearly violated these three statutory provisions of the TCA. III. Substantial Evidence (Count 3) A. The Substantial Evidence Standard The TCA established procedural requirements that local planning boards must comply with in their evaluation of cell site applications. Town of Oyster Bay, 166 F.3d at 494. The TCA requires that denials of permits to build wireless service facilities be supported by substantial evidence. 47 U.S.C. § 332(c)(7)(B)(iii). This Court should apply “the traditional standard used for judicial review of agency actions” in its determination of whether the denial was supported by substantial evidence. Town of Oyster Bay, 166 F.3d at 494 (quoting H.R. Conf. Rep. No. 104-458, at 206 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223). The Court may neither engage in its own fact-finding nor supplant the Board’s reasonable determinations. Id. (citing PrimeCo Personal Communications, L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1063 (N.D.Ill.1998)). Although it is true that a district court generally defers to a zoning board’s decision by not substituting its judgment for that of the Board, “it must overturn the board’s decision under the substantial evidence test if it ‘cannot conscientiously find that the evidence supporting" }, { "docid": "23005455", "title": "", "text": "when the court has determined that the board’s ruling was arbitrary and capricious and not supported by substantial evidence — particularly where, as here, the court finds that remand would be futile because the only asserted basis for the board’s ruling was impermissible— is not equivalent to a finding that the town board lacked discretion in the first instance. See Viscio v. Town of Guilderland Planning Bd., 138 A.D.2d 795, 525 N.Y.S.2d 439, 441 (3d Dep’t 1988) (noting that “it is generally more proper to remit a matter [to the board] ... rather than to direct” a particular action, but affirming the lower court’s grant of relief directing action where the record was clear and respondent had not suggested that remit-tal was necessary). Clubside argues that the state court judgments in its favor are evidence that it had a right in the grant of its petition. Clubside, however, has not argued on appeal that these court judgments — by themselves — created a constitutionally protected entitlement to a permit even if such entitlement did not previously exist. We express no opinion as to whether a state court judgment in an applicant’s favor may of itself create a due process right where none already exists. Because it is not the role of the federal courts to protect landowners from merely arbitrary actions that are correctable by state remedies, see Nótale 170 F.3d at 263, our analysis does not turn on the outcome of the Article 78 proceeding. Instead, we look to whether, “prior to the Article 78 proceeding,” “the issuing authority lack[ed] discretion to deny the permit.” Harlen Assocs., 273 F.3d at 504 (internal quotation marks omitted). Here, the Article 78 court concluded that “the grounds for the denial were the unsubstantiated fears of the individual members of the Town Board that the condominium development posed public health problems and that the addition of school-age children would burden the local system” and therefore that the Board’s decision was arbitrary and capricious. Club-side II, 747 N.Y.S.2d at 547. Neither the State Supreme Court nor the Appellate Division discussed whether the Board’s decision" }, { "docid": "14164639", "title": "", "text": "it appears that the Common Council was unduly affected by community pressure to determine whether the RROC co-op board was treating the residents of River House fairly with respect to the Omnipoint contract. This is not a statutorily-recognized reason for treating Omnipoint differently than other applicants. By making Omnipoint comply with numerous unprecedented conditional requests, and by providing a “fast-track” application process to other service providers who chose to rent space from the municipality, the Common Council unreasonably discriminated against Omnipoint. I grant summary judgment to plaintiff on this claim. VI. Article 78 Claim (Count 5) Omnipoint also seeks summary judgment on its supplemental state law claim arising under N.Y. CPLR Article 78, which affords relief from administrative decisions that are “affected by an error of law” or not “supported by substantial evidence.” N.Y. CPLR § 7803(3) and (4). The test for “substantial evidence” in New York is essentially the same as that under the TCA. See Willoth, 176 F.3d at 646. “In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably probatively and logically.” 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 57, 379 N.E.2d 1183 (1978). As stated above, I find that the Common Council’s Amended Resolution of December 11, 2000 is not supported by substantial evidence. Rather than reach a decision based upon an impartial and reasoned analysis of Omnipoint’s application, the Common Council yielded to pressure exerted by a small but vocal group of River House residents. The unlawful conditions attached to the Common Council’s Resolutions of March 27, 2000 and December 11, 2000 were a byproduct of that pressure, and they cannot be sustained. Therefore, I grant Omnipoint summary judgment on its Fifth Claim. VII. Violation of Local Law (Count 6) Omnipoint also alleges that the Common Council violated New York law when it purported to divest the Director of" }, { "docid": "14973355", "title": "", "text": "985, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000). [Decision, p. 23.] In its Decision, the Board extrapolated from these Third Circuit cases the proposition that there can be no public necessity for a cell tower as long as some wireless service provider operates in the vicinity. However, that proposition is clearly not true under the Zoning Ordinance’s “public necessity” requirement, which must be interpreted in light of New York law. In Cellular Tel. Co., Cellular One brought an Article 78 proceeding seeking review of the Dobbs Ferry Planning Board’s denial of its application for a permit to construct a cellular telephone cell site. Id., 82 N.Y.2d at 368, 604 N.Y.S.2d 895, 624 N.E.2d 990. This new cell site would enable Cellular One to expand and fill gaps in its service area. Id. Following the submission of Cellular One’s application, the Planning Board held a series of public hearings regarding the application. The Planning Board denied the application, finding that Cellular One had offered insufficient evidence to establish, among other things, “that there exists a public necessity for its service, or what the need of the broader public is relating to such service, or that it is a public utility relating to the zoning ordinance.” Id. at 370, 604 N.Y.S.2d 895, 624 N.E.2d 990. A CPLR Article 78 proceeding followed, challenging the Planning Board’s determination. Cellular One alleged that the Planning Board’s denial was arbitrary and capricious, unsupported by the record, not supported by substantial evidence, and contrary to law. Id. Specifically, Cellular One “asserted that the Board failed to apply the appropriate standard of public necessity set forth in Matter of Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 403 N.Y.S.2d 193, 374 N.E.2d 105 (1978).” Id. The New York Supreme Court granted plaintiffs Article 78 petition, and directed the Planning Board to issue the permit, finding that the Planning Board’s decision was “significantly flawed in its analysis and conclusions” and “arbitrary and capricious.” Id. The Appellate Division affirmed. Id. On appeal, appellants argued that the Supreme Court and the Appellate Division improperly applied the “public utility” exception to the" }, { "docid": "23005454", "title": "", "text": "after it concluded that the board acted arbitrarily in denying the application does not necessarily mean that the applicant had a property interest in the permit prior to the Article 78 proceeding. See RRI Realty, 870 F.2d at 919; see also Natale, 170 F.3d at 264 (holding that the state court’s “conclusion that Natale’s right was sufficiently clear to warrant mandamus relief as a matter of state law does not establish that Natale’s entitlement to [the] permits was so clear as to accord him a federally pro-tectable property right in those permits”); Bower Assocs. v. Town of Pleasant Valley, 2 N.Y.3d 617, 624, 629, 781 N.Y.S.2d 240, 814 N.E.2d 410 (2004) (holding that Bower Associates did not have a property interest in the subdivision approval even though the Appellate Division had found in its decision in a related Article 78 action that the claimants had “met all the conditions needed for approval of its subdivision application” (internal quotation marks omitted)). Simply put, an Article 78 court’s order directing a town board to take particular action when the court has determined that the board’s ruling was arbitrary and capricious and not supported by substantial evidence — particularly where, as here, the court finds that remand would be futile because the only asserted basis for the board’s ruling was impermissible— is not equivalent to a finding that the town board lacked discretion in the first instance. See Viscio v. Town of Guilderland Planning Bd., 138 A.D.2d 795, 525 N.Y.S.2d 439, 441 (3d Dep’t 1988) (noting that “it is generally more proper to remit a matter [to the board] ... rather than to direct” a particular action, but affirming the lower court’s grant of relief directing action where the record was clear and respondent had not suggested that remit-tal was necessary). Clubside argues that the state court judgments in its favor are evidence that it had a right in the grant of its petition. Clubside, however, has not argued on appeal that these court judgments — by themselves — created a constitutionally protected entitlement to a permit even if such entitlement did not" }, { "docid": "23005429", "title": "", "text": "owner-occupied, but are owned by absentee landlords who, in many cases, fail to keep the premises well maintained. The result, in some cases, is that the units become rat-infested, garbage-laden properties detrimental to the public health. On March 30, 2001, the court ruled for Clubside, annulling the Board’s resolution denying the petition and directing the Board to extend the sewer district. The court found that the public-he'aring record was “devoid of any basis for [the Board] to have concluded, as it did without explanation, that it was not in the public interest to grant petitioner’s application. Indeed, the record reflects that the public interest would not be adversely affected by the extension requested.” Clubside, Inc. v. Town Bd., Town of Wallkill, Ind. No. 6862-00, slip op. at 2 (N.Y.Sup.Ct. Mar. 30, 2001) (“Clubside I”). The court further observed that “it is clear ... that the respondent’s decision was based on rank speculation intended to restrict or minimize development.” Id. Accordingly, it held that the September 28, 2000 resolution denying Clubside’s petition was arbitrary and capricious, and “not supported by any evidence.” Id. at 3. The court therefore found that there was no purpose in remanding the petition to the Board to make written findings. Id. at 2. The Board appealed the ruling to the Appellate Division, which affirmed the lower court decision. See Clubside, Inc. v. Town Bd., Town of Wallkill, 297 A.D.2d 734, 747 N.Y.S.2d 546 (2d Dep’t 2002) (“Clubside II”). The court observed that it was evident, based on the detailed affidavit of the Town Supervisor submitted in opposition to the petition, that the grounds for the denial were the unsubstantiated fears of the individual members of the Town Board that the condominium development posed public health problems and that the addition of school-age children would burden the local school system. Id. at 547. The Appellate Division thus agreed that the Board’s denial of Club-side’s petition was arbitrary and capricious. Id. On February 13, 2003, a newly constituted town board met to consider Clubside’s pending sewer-district petition that it had been directed to grant in the Article 78" }, { "docid": "17299537", "title": "", "text": "Rules provides a summary proceeding which can be used to review administrative decisions. That article makes available types of relief which, before its enactment, were obtainable in New York’s courts only by writs of certiorari, mandamus or prohibition. Specifically, Article 78 states, in pertinent part, as follows: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion ...; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. Article 78 “provides the mechanism for challenging a specific decision of a state administrative agency.” Liotta v. Rent Guidelines Board, 547 F.Supp. 800, 802 (S.D.N.Y.1982). Mrs. Campo argues that Article 78 is not an adequate remedy because (1) in an Article 78 court she carries the burden of overcoming a presumption of administrative regularity and (2) the Article 78 court will not itself assess the credibility and reliability of her testimony but rather will confine itself to deciding whether NY-CERS’ denial of her claim was arbitrary and capricious. An Article 78 court can, however, entertain Mrs. Campo’s procedural due process challenge and decide if a remand for an administrative hearing is required. In Solnick v. Whalen, 49 N.Y.2d 224, 401 N.E.2d 190, 425 N.Y.S.2d 68 (1980), the Court of Appeals of New York noted that an Article 78 proceeding was available to challenge procedures used to revise Medicaid reimbursement rates. In Sol-nick, Judge Jones wrote that such a challenge is “available as a question for review in such a proceeding under the third question authorized by CPLR 7803 — whether the ‘determination was made in violation of lawful procedure" }, { "docid": "21623248", "title": "", "text": "e.g., R. at 35, ¶ 119; at 36, ¶ 122. Petitioner Dolan also asserted a bad faith claim in his Article 78 petition, averring that the State’s “conduct in discharging [plaintiff]... constitutes bad faith and is arbitrary, capricious and an abuse of discretion.” Id. at 38, ¶ 195; see also id. at 23, ¶ 105 (State’s “termination.. .was accomplished in bad faith[ ]”). Recognizing its “limited review of whether the [Civil Service]' action was arbitrary or capricious[,]” the Appellate Division decided that issue when it held that Civil Service was justified in revoking plaintiffs appointment because there was a rational basis for so doing. Dolan, 304 A.D.2d at 1039, 759 N.Y.S.2d 221. Based upon the lessen and Vargas rationale, the Appellate Division’s finding that the State had a “rational basis” under section 50(4) of the Civil Service law for disqualifying plaintiff as a Tax Department investigator subsumes the question of whether that disqualification was made with an impermissible motive. See also Crosland v. City of New York, 140 F.Supp.2d 300, 310 (S.D.N.Y.2001) (citing cases), aff'd without pub’d decision, 54 Fed.Appx. 504 (2d Cir.2002) (internal quotation marks and citations omitted) (where “state court concluded that the Medical Board’s decision to rejects [plaintiffs] application for accidental disability retirement was both rational and based on credible medical evidence!,].. .finding by [federal district] Court that [plaintiff] was denied [such] retirement in retaliation for his protected speech would necessarily contradict the state court’s determination! ]”); Richardson v. City of New York, No. 97 Civ. 7676, 2004 WL 325631, at *1 (S.D.N.Y. Feb.20, 2004) (quoting Latino Officers Ass’n v. City of New York, 253 F.Supp.2d 771, 787 (S.D.N.Y.2003)) (“[Wh]ere an Article 78 petitioner seeks annulment of a disciplinary decision on the ground that it was discriminatory or retaliatory, a determination by the state courts that the decision was supported by substantial evidence ‘necessarily implie[s] rejection of [the] claim that [the] termination was discriminatory and retaliatory’ and thus forecloses a similar contention in a subsequent federal action.”) Furthermore, plaintiffs First Amendment retaliation claims and his Article 78 claims are “inextricably intertwined” under the Rooker-Feldman doctrine. That is" }, { "docid": "23005430", "title": "", "text": "and “not supported by any evidence.” Id. at 3. The court therefore found that there was no purpose in remanding the petition to the Board to make written findings. Id. at 2. The Board appealed the ruling to the Appellate Division, which affirmed the lower court decision. See Clubside, Inc. v. Town Bd., Town of Wallkill, 297 A.D.2d 734, 747 N.Y.S.2d 546 (2d Dep’t 2002) (“Clubside II”). The court observed that it was evident, based on the detailed affidavit of the Town Supervisor submitted in opposition to the petition, that the grounds for the denial were the unsubstantiated fears of the individual members of the Town Board that the condominium development posed public health problems and that the addition of school-age children would burden the local school system. Id. at 547. The Appellate Division thus agreed that the Board’s denial of Club-side’s petition was arbitrary and capricious. Id. On February 13, 2003, a newly constituted town board met to consider Clubside’s pending sewer-district petition that it had been directed to grant in the Article 78 action. For reasons that are not entirely clear from the record, the town board voted to reject the petition. Notwithstanding the vote, an amended final judgment in the Article 78 case was issued on April 11, 2003 granting Clubside’s petition. III. The Federal Litigation On August 11, 2003, Clubside filed this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York (Brieant, J.), alleging that the actions of the Board and others denied its right to substantive due process under the Fourteenth Amendment and its right to petition pursuant to the First Amendment, as incorporated through the Fourteenth Amendment. Clubside later amended the complaint to add an equal protection claim. After the close of discovery, the parties cross-moved for summary judgment and Clubside moved to strike the board members’ qualified immunity defense. The district court denied Clubside’s motion to strike, finding that issues of fact remained with respect to the defense of qualified immunity. It found that a full trial record would be necessary to resolve" }, { "docid": "18206904", "title": "", "text": "Mount Vernon violated the TCA by failing to base its decision on substantial evidence. c. Applicability of Clarkstown Decision Plaintiff has cited the opinion in New York SMSA Ltd. Partnership v. Town of Clarkstown, 603 F.Supp.2d 715 (S.D.N.Y. 2009) to support its argument that the City of Mount Vernon’s preference for DAS technology interferes with a field completely occupied by federal law and is preempted by the TCA. While the Court disagrees with Plaintiff that Clarkstown is directly on point, it finds its holding informs the decision in this case. In Clarkstown, the court struck down a town ordinance that legislated a preference for alternative technology, 603 F.Supp.2d at 726, whereas here the preference is stated by the Planning Board but not codified in the Zoning Code. The distinction is significant because in Clarkstown the preemption analysis relied on the fact that the Town’s legislated preference went beyond the individual permit decisions that are acceptable under Willoth, 176 F.3d 630 (2d Cir.1999), and Omnipoint Comm. v. City of White Plains, 430 F.3d 529 (2d Cir.2005), and interfered with the TCA’s “pervasive scheme.” Clarkstown, 603 F.Supp.2d at 726. Whereas in Willoth and City of White Plains, the Second Circuit allowed planning boards to examine aesthetic concerns with regard to applications setting forth “specific technologies to be used on specific sites,” the Clarkstown Planning Board “legislated a preference for certain technology regardless of site location.” Id. In contrast, it is proper for a town to express a preference for an alternative technology for a specific application. For example, in Nextel Comm. v. Town of Brookline, 520 F.Supp.2d 238, 252-53 (D.Mass.2007), the court found the evidence presented was adequate to support the determination that DAS presented a feasible alternative to Nextel’s proposal and that Nextel failed to fully investigate this option. Nextel proposed building a new installation on top of a private hospital, a use that was not allowed by the zoning code and was not eligible for a special use permit. Id. at 250-51. Evidence also showed that the site would not eliminate the coverage gap and Nextel’s RF engineer conceded that" }, { "docid": "12324004", "title": "", "text": "Board refused to address Carino’s contention that the ordinance was preempted by the FCC regulation codified at 47 C.F.R. § 25.104. Id. at 57. For those reasons, the Zoning Board denied Carino’s application for a variance. Carino next commenced an Article 78 proceeding in New York State Supreme Court to challenge the Zoning Board’s decision. Named as respondents in that proceeding were the Zoning Board and the individual members of that Board. The Town of Deerfield, a defendant herein, was not named as a respondent. The state supreme court found without merit Carino’s contention that the Zoning Board’s decision was arbitrary and not supported by substantial evidence. Id. at 6. The state court next found that Carino’s claim that the zoning ordinance violated his equal protection rights was specious. Id. Finally, the court determined that there was no basis for Carino’s preemption claim. Id. at 7. The state court therefore denied Carino’s petition in its entirety. Id. Carino then appealed that decision to the New York State Appellate Division, Fourth Department. The Appellate Division unanimously affirmed the lower court decision “[f]or the reasons set forth in the memorandum at Special Term_” Carino v. Pilon, 142 A.D.2d 996, 530 N.Y.S.2d 1022 (4th Dep’t 1988). The Appellate Division observed, “[w]e add only that an article 78 proceeding is not the proper proceeding in which to challenge the constitutionality of a zoning ordinance.” Id. Subsequently, on its own motion, the New York Court of Appeals dismissed Carino’s appeal taken as of right because no “[substantial constitutional question [was] directly involved.” Carino v. Pilon, 72 N.Y.2d 1038, 534 N.Y.S.2d 935, 531 N.E.2d 655 (1988). It also denied Carino’s motion for leave to appeal. Id. I. RES JUDICATA Defendants first assert that the doctrine of res judicata bars plaintiffs from relitigating the issues raised in this action based upon a prior state court judgment. “A federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City School Dist. Bd. of Educ., 465" }, { "docid": "22064416", "title": "", "text": "stamp and reduce its role in the process to a rote check of whether the proper filings had been made. Such a result is diametrically opposed to the intent of the Village in drafting its zoning law to give the Board discretion and the duty to protect the interests of the community. The cases Harlen cites do not strengthen its argument. Each of them involved a situation where local officials were required by law to grant the permit if the application was properly filed. See Walz, 46 F.3d at 168 (Town Code stated that “[u]pon compliance with the foregoing requirements, a permit shall be issued”); Sullivan, 805 F.2d at 85 (Connecticut law provided that there was no discretion if houses met requirements). The law at issue in our case is different. As noted, the Village Board is vested with significant discretion to deny applications even after proper filings have been made. The presence of that discretion precludes any legitimate claim of entitlement by Harlen. Therefore, Harlen’s due process claim must fail. See Crowley, 76 F.3d at 52 (holding that no property right existed where Board had discretion similar to that here). Harlen also fails to satisfy the second part of the due process inquiry, since it is evident that, even if it had a cognizable property right, the Board did not deprive it of any such right in an arbitrary manner. As we concluded in the context of Harlen’s equal protection claim, the Board had legitimate interests which could rationally be furthered through the denial of Harlen’s application. See id. (noting that a zoning board’s action can be considered arbitrary or irrational only where it has no legitimate basis). As a result, the Board’s actions cannot be held to be arbitrary as a matter of federal constitutional law. The heart of Harlen’s claim is that the Board came to an improper conclusion. Harlen’s arguments rely heavily on New York cases arising out of Article 78 appeals of local zoning decisions which raise no federal constitutional issue. See C.B.H. Prop. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913, 914-15 (2d Dep’t" }, { "docid": "2593524", "title": "", "text": "(Dkt. No. 30-5) 10-14.) See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir.2001) (noting that “substantive due process does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit. Its standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority,” and holding that allegation that village board made incorrect determination under state law did not amount to violation of this standard); Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir.1999) (\"Arbitrary conduct that might violate zoning regulations as a matter of state law is not sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of governmental authority that will offend the substantive component of the Due Process Clause.”). It is also worth pointing out that the October 7, 2008 Article 78 proceeding addressing Missere’s appeal of the ZBA’s decision concluded that the ZBA’s action \"had a rational basis, and was not arbitrary and capricious.” (Dolan Aff. Ex, D, at 3 (alteration and internal quotation marks omitted)) Whether the ZBA acted arbitrarily and capriciously was thus an issue necessarily litigated and decided in the Article 78 proceeding, see N.Y. C.P.L.R. § 7803 (listing \"questions that may be raised” in an Article 78 proceeding), and if the ZBA’s action was not \"arbitrary or capricious” then a fortiori it could not constitute \"a gross abuse of governmental authority,” Harlen Assocs., 273 F.3d at 505. See, e.g., T.S. Haulers, Inc. v. Cardinale, No. 09-CV-451, 2010 WL 4275310, at *7 (E.D.N.Y. Feb. 16, 2010) (holding that Article 78 proceeding’s determination that denial of special permit was rational barred substantive due process claim based on same denial). Because Missere has failed to allege a protected property interest, the Court need not address these arguments further. . The Village Defendants argue that a plaintiff may not base a class-of-one claim on an exercise of discretionary governmental decisionmaking, citing Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)." }, { "docid": "21623245", "title": "", "text": "position was based on economic considerations and was not undertaken in bad faith.” Id. Thus because the court found that “[t]he Town’s action could not be both retaliatory and in good faith[,]” it found that the first prong of the collateral estoppel test had been met “because an issue essential to plaintiffs First Amendment claim was decided adversely to him in the Article 78 proceeding.” Id. The Jessen court is not alone in its reasoning. For example, in Vargas v. City of New York, No. 01 Civ. 7093, 2003 WL 660820 (S.D.N.Y. Feb.28, 2003), after a Civilian Review Board found plaintiff “guilty of using excessive force while effectuating [an] arrest[,]” he was terminated. Id. at *1 (citations omitted). Following his termination, plaintiff commenced an article 78 proceeding alleging “that the Board’s decision was arbitrary, capricious, an abuse of discretion, contrary to the weight of the evidence adduced at the disciplinary hearing and excessive punishment[,]” as well as amounting to a denial of due process. Id. at *5 (internal quotation marks and citation omitted). Upon transfer to the Appellate Division that court “dismissed plaintiffs case holding that the.... determination that plaintiff used excessive force in making the arrest was ‘supported by substantial evidence’ and that the penalty of dismissal does not shock our conscience in view of the evi-denee[.]” Id. (citing Vargas v. Safir, 278 A.D.2d 54 (1st Dep’t 2000)). Plaintiff Vargas then commenced a civil rights action in federal court alleging that he was terminated based upon his race in violation of his Equal Protection and Due Process rights. Ultimately the Vargas court held that based upon the Rooker-Feldman doctrine, it was without subject matter jurisdiction to consider those claims. See id. at *6. In so holding, the court rejected plaintiffs contention “that he did not have an opportunity to argue discrimination and disparate treatment claims in the prior proceedings.” Id. at *4. Plaintiff had such an opportunity reasoned the Vargas court because “an Article 78 proceeding is an appropriate forum to raise [such] issues[.]” Id. at *5 (citations omitted). The court stressed that “[although plaintiff did not raise his" }, { "docid": "14164638", "title": "", "text": "As a result, defendants admit that they unreasonably discriminate against providers of functionally equivalent services. Defendants also fail to counter Om-nipoint’s claim that the Common Council unreasonably discriminated against it through its unprecedented scrutiny of the legal relationship between Omnipoint and RROC. Defendants do not refute that only Omnipoint was subject to such extensive application requirements and such a prolonged investigation. Defendants give no reason for such action except that the Common Council wanted to get to the bottom of Omnipoint’s contractual relationship with RROC. This is not a suitable grounds for reasonable discrimination among servers. The legislative history of the TCA contemplated that some discrimination would occur, noting that the “unreasonable discrimination” standard “will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services.” H.R. Conf. No. 104-458, at 208, reprinted in 1996 U.S.C.C.A.N. at 222. The Common Council expressed no visual, aesthetic or safety concerns about Omni-point’s proposed facility; it appears that the Common Council was unduly affected by community pressure to determine whether the RROC co-op board was treating the residents of River House fairly with respect to the Omnipoint contract. This is not a statutorily-recognized reason for treating Omnipoint differently than other applicants. By making Omnipoint comply with numerous unprecedented conditional requests, and by providing a “fast-track” application process to other service providers who chose to rent space from the municipality, the Common Council unreasonably discriminated against Omnipoint. I grant summary judgment to plaintiff on this claim. VI. Article 78 Claim (Count 5) Omnipoint also seeks summary judgment on its supplemental state law claim arising under N.Y. CPLR Article 78, which affords relief from administrative decisions that are “affected by an error of law” or not “supported by substantial evidence.” N.Y. CPLR § 7803(3) and (4). The test for “substantial evidence” in New York is essentially the same as that under the TCA. See Willoth, 176 F.3d at 646. “In final analysis, substantial evidence consists of proof within the whole record of" }, { "docid": "18878475", "title": "", "text": "hearing conducted, Justice Zeller concluded that the hearing was not adjudicative in nature and subject therefore to substantial evidence review, but rather administrative and reviewable under the arbitrary and capricious standard. See, November 9, 1979 Order, at 4. Defendants themselves apparently accept Altaire’s characterization of the action complained of as the denial of a building permit. New York’s courts have consistently held that the denial of a permit is an administrative decision for purposes of Article 78 review. See, e.g., Rothstein v. County Operating Corp., 6 N.Y.2d 728, 185 N.Y.S.2d 813, 158 N.E.2d 507 (1959). In Kinderhill Farm Breeding Associates v. Appel, 450 F.Supp. 134, 136 (S.D.N.Y.1978), the court found that, when a Town Board engages in the application of an existing statutory scheme, its actions are not legislative, but administrative or executive entitling Town Board members to only qualified immunity. While the actions of the Trustees are not ministerial, they are no more discretionary than the decision of a zoning body when presented with an application for a special permit. Special permits allow property owners to use their property in a manner expressly permitted by the zoning law, just as the zoning law here expressly permitted P.U.D. projects. The procedures by which special permit requests are considered are the same as those applied here in reviewing a P.U.D. application. Generally, special permit provisions require that there be pri- or notice and a hearing, a decision accompanied by findings of fact as to the compliance of the applicant with the standards provided in the ordinance for special permits, and support for the findings in the record. See, generally, Anderson, New York Zoning Law and Practice, Vol. 2, Special Permits, §§ 19.23-19.24, at p. 121-124. Yet the decision is traditionally regarded as administrative for purposes of Article 78 review. Id., Certiorari and Mandamus § 22.15 at 202-203. In short, I am not persuaded that in performing their role in the P.U.D. review process the Trustees function as judicial officers. Such a characterization is inconsistent with the traditional treatment of zoning as a legislative function when the matter involves the enactment or" }, { "docid": "14164623", "title": "", "text": "Evidence Standard The TCA established procedural requirements that local planning boards must comply with in their evaluation of cell site applications. Town of Oyster Bay, 166 F.3d at 494. The TCA requires that denials of permits to build wireless service facilities be supported by substantial evidence. 47 U.S.C. § 332(c)(7)(B)(iii). This Court should apply “the traditional standard used for judicial review of agency actions” in its determination of whether the denial was supported by substantial evidence. Town of Oyster Bay, 166 F.3d at 494 (quoting H.R. Conf. Rep. No. 104-458, at 206 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223). The Court may neither engage in its own fact-finding nor supplant the Board’s reasonable determinations. Id. (citing PrimeCo Personal Communications, L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1063 (N.D.Ill.1998)). Although it is true that a district court generally defers to a zoning board’s decision by not substituting its judgment for that of the Board, “it must overturn the board’s decision under the substantial evidence test if it ‘cannot conscientiously find that the evidence supporting the decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.’ ” SBA Communications, Inc. v. Zoning Comm’n of the Town of Brookfield, 112 F.Supp.2d 233, 237 (D.Conn.2000) (quoting BellSouth Mobility, Inc. v. Gwinnett County, 944 F.Supp. 923, 928 (N.D.Ga.1996)); see also Town of Oyster Bay, 166 F.3d at 494; Omnipoint Communications, Inc. v. City of White Plains, 175 F.Supp.2d 697 (S.D.N.Y.2001). Substantial evidence has been construed to mean less than a preponderance, but more than a scintilla of evidence. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (internal quotations omitted). The record should be viewed in its entirety; that is, evidence opposed to the City of Peekskill’s view must be considered as well. American Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). Local and state zoning" }, { "docid": "14973310", "title": "", "text": "MEMORANDUM, DECISION AND ORDER McMAHON, District Judge. Omnipoint Communications, Inc. (“Om-nipoint”) brings this action against the City of White Plains and its Planning Board (the “Board”), alleging violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (the “TCA”), Article 78 of The New York Civil Practice Laws and Rules, and 42 U.S.C. § 1983, for the Board’s denial of Omnipoint’s application for a permit to build a 150 foot monopole, with antennas and associated equipment, on certain premises owned by the Fenway Golf Club, located on Old Mamaroneck Avenue in the City. Omnipoint alleges a violation of Section 704 of the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), alleging that the Board’s decision was not supported by substantial evidence (Count I); a violation of 47 U.S.C. § 332(e)(7)(B)(i)(I) for defendants’ “unreasonable discrimination” against Omnipoint (Count II); a violation of 47 U.S .C. § 332(e)(7)(B)(i)(II) for defendants’ “prohibition] of the provision of personal wireless services” (Count III); a violation of 47 U.S.C. § 332(e)(7)(B)(ii) for defendants’ unreasonable delay in its processing of Omnipoint’s Application (Count IV); a violation of Civil Practice Laws and Rules Article 78 for the defendants’ abuse of discretion in its denial of the Application (Count V); and, a violation of 42 U.S.C. § 1983 for defendants’ violation of Omni-point’s rights, privileges, or immunities under the TCA (Count VI). Omnipoint sues for injunctive relief, declaratory relief, damages, costs and attorney’s fees. Omnipoint moves for partial summary judgment under Count I of its Complaint. Defendants cross-move for summary judgment to dismiss all six counts in Omni-point’s complaint. For the reasons stated below, plaintiffs Motion for Partial Summary Judgment as to Count I is granted. Defendants’ Motion for Summary Judgment as to Counts III, IV and V is granted. Defendants’ Motion for Summary Judgment as to Count II is denied. Count VI is subsumed into Counts I and II. FACTS PERTINENT TO THE MOTION A. Local Rule 56.1(d) Plaintiff has moved to strike defendant’s Response to plaintiffs Rule 56.1 Statement of Facts and to deem defendants’ unsupported general denials as admissions. Defendants failed to reply to plaintiffs motion to" }, { "docid": "14973347", "title": "", "text": "moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (2d Cir.1993) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party’s claim. See Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this initial burden, the nonmoving party must set forth “specific facts showing that there is a genuine issue for a trial.” Fed.R.Civ.P. 56(e). IV. Substantial Evidence (Count I) A. Substantial Evidence Standard The TCA established procedural requirements that local planning boards must comply with in their evaluation of cell site applications. Town of Oyster Bay, 166 F.3d at 494. The TCA requires that denials of permits to build wireless service facilities be supported by substantial evidence. 47 U.S.C. § 332(c)(7)(B)(iii). This Court should apply “the traditional standard used for judicial review of agency actions” in its determination of whether the denial was supported by substantial evidence. Town of Oyster Bay, 166 F.3d at 494 (quoting H.R.Conf.Rep. No. 104-458, at 206 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223). The Court may neither engage in its own fact-finding nor supplant the Board’s reasonable determinations. Id. (citing PrimeCo Personal Communications, L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1063 (N.D.Ill.1998)). Although it is true that a district court generally defers to a zoning board’s decision by not substituting its judgment for that of the Board, “it must overturn the board’s decision under the substantial evidence test if it ‘cannot conscientiously find that the evidence supporting the decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.’ ” SBA Communications, Inc. v. Zoning Comm’n of the Town of Brookfield, 112 F.Supp.2d 233, 237 (D.Conn.2000) (quoting BellSouth Mobility, Inc. v. Gwinnett County, 944 F.Supp. 923, 928 (N.D.Ga.1996)); see also Town of Oyster Bay, 166 F.3d at" } ]

[ { "docid": "23537377", "title": "", "text": "taxpayer’s returns. Foster v. United States, 265 F.2d 183 (2nd Cir.), cert. denied, 360 U.S. 912, 79 S.Ct. 1297, 3 L. Ed.2d 1261 (1959). Submitting to an Internal Revenue Agent a false document is a violation of 18 U.S.C. § 1001. Disobedience or resistance to a lawful order of the court is a violation of 18 U.S.C. § 401(3). Failure to obey a subpoena is contempt. Fed.R.Crim.P. 17(g). Taylor v. United States, 221 F.2d 809 (6th Cir. 1955), cert. denied, 350 U.S. 834, 76 S.Ct. 69,100 L.Ed. 744 (1955). The District Court stated at the hearings on post-trial motions: “The gravamen and thrust of the Government’s case was that the grand jury was presented with records which were not the true records of the company. That is the simple gravamen of the offense.” The Court instructed the jury: “For example, endeavoring to obstruct Grand Jury functions is within the purview of Section 1503 as is endeavoring to provide a Grand Jury with misleading, false or altered records.” The fact that Ryan may have been guilty of contempt, or of some other crime with which he has not been charged, does not support the conviction in the present case and it cannot stand. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Marvin v. United States, 279 F.2d 451, 452 (10th Cir. 1960); United States v. Smith, 232 F.2d 570, 573 (3d Cir. 1956). See also Maggio v. Zeitz, 333 U.S. 56, 68, 68 S.Ct. 401, 92 L.Ed. 476 (1948). In United States v. Metcalf, 435 F.2d 754, 756 (9th Cir. 1970), this Court held that Section 1503 was designed to protect participants in a specific proceeding to prevent a miscarriage of justice, and that the statute was not applicable until a complaint had been filed with a United States Commissioner. The word “corrupt” in the statute means for an evil or wicked purpose. Specific intent to impede the administration of justice is an essential element of the offense. Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893). The Government states" } ]

[ { "docid": "22815907", "title": "", "text": "transfer, discussed earlier, was an acknowledgment by him that the Chase accounts in his name were actually his funds and at the same time evinced his willingness to sign a false document to escape personal income tax liability. B. The Conspiracy Count (Count One) Moon next argues that the government presented no evidence that he personally entered into or participated in a conspiratorial agreement to file false tax returns or obstruct the tax fraud investigation against him. The facts adduced at trial contained ample evidence that several subordinates of Moon engaged in a continuing and agreed upon course of conduct amounting to a conspiracy to file false returns and obstruct justice. Included among these was Kamiyama, whose participation in the preparation of the 1973 return and whose part in the false and backdated “loan” agreements submitted to the accountants for preparation of the 1974 and 1975 returns has already been recounted. Viewed in the light most favorable to the government, Moon’s argument of lack of involvement is unpersuasive. Not only was Moon the person with the greatest personal stake in the success of the acts in question, but there was proof that he exerted close scrutiny over his own personal affairs and was aware of the information contained in his tax returns. He signed one of the postdated loan agreements (the $200,000 loan from Kamiyama to Moon) which was later submitted to the IRS in connection with the audit of his returns. Finally, Moon and his associates, through Moon’s personal lawyers, submitted to the Justice Department in 1981 the same falsely backdated documents that had earlier been submitted to the IRS and to Moon’s accountants. In short, there was ample evidence for the jury to find that Moon participated in a conspiracy to file false tax returns and/or obstruct justice. Ill JURY INSTRUCTIONS Moon objects to the trial court’s instructions to the jury in three particular areas. First he contends that the instructions on the law of trusts were erroneous and incomplete. Second, he argues that certain instructions violated the First Amendment’s Religion Clauses. And third he questions the instructions" }, { "docid": "14260278", "title": "", "text": "not substantially identical, theories to support his argument that these questions and answers were immaterial to the grand jury’s inquiry. First, he argues that the grand jury’s investigation could not have been helped or hindered by his response to these questions, see United States v. Berardi, supra, 629 F.2d at 728, because there was no real dispute as to whether Moon signed documents relating to Tong II or whether Moon ever wrote more than his signature on the checks. (Prior to Kamiyama’s testimony, the grand jury received copies of checks drawn on the Chase accounts and a copy of the Tong II stock subscription offer bearing Moon’s name and signature. Additionally, a handwriting expert concluded that the handwriting on certain checks was that of Moon.) Second, he argues that his answers were not material because the questions posed to him sought information already possessed by the grand jury. Neither argument is sufficient to dismiss these counts of the indictment. As the Government notes in its papers, the grand jury had a broad mandate to determine whether Moon and Kamiyama had violated federal law. In particular, the grand jury was interested in information concerning the defendants’ role, knowledge, and involvement in the Chase accounts, in Tong II Enterprises, and in the preparation of Moon’s tax returns. See Indictment ¶¶26, 30. It seems clear, therefore, that these inquiries cannot be deemed immaterial to the grand jury’s investigation. Kamiyama’s argument that the grand jury’s investigation could not have been hindered because these particular facts were not in dispute is specious. When Kamiyama testified that Moon never signed documents relating to Tong II and that Moon wrote only his signature on the checks, the grand jury was entitled to believe his testimony. If they did so and if his statements were false, “the natural effect would have been to impede the grand jury’s investigation.” United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972). Kamiyama’s second theory is not supported by the authorities. That the grand jury has evidence contradicting the witness’s" }, { "docid": "22815964", "title": "", "text": "review the accuracy of the challenged language. Before the trial court ruled on Kamiyama’s motion, a superseding indictment was returned which omitted two of the allegedly inaccurate specifications in Count Ten. The trial court ultimately appointed an interpreter to translate the tape recording of those portions of Kamiyama’s grand jury testimony included in the indictment. Judge Goettel also requested defense counsel to “specify the particular portions of the translation that [were] in dispute.” This was done at a pretrial hearing held on March 5, 1982. With respect to the objections to Counts Ten and Eleven, the district court found no significant difference between Kamiyama’s testimony as set out in the superseding indictment and the court-appointed translator’s interpretation of the recordings of that testimony. It did agree with Kamiyama’s claims that certain Count Twelve testimony had been translated inaccurately and it dismissed all of that Count’s specifications objected to by Kamiyama. With regard to Count Thirteen, the court found that the appointed translator’s version of what Kamiyama had said agreed with the language quoted in the indictment, and counsel for Kamiyama accepted those translations as being accurate. The government later obtained a superseding Count Twelve indictment which omitted the previously objected to language. At trial Kamiyama did not argue that the translation of the testimony set forth in the remaining false declaration counts was inaccurate. After the close of the evidence, the district court granted Kamiyama’s request to make the court translator’s translation an exhibit which the jury could see, if requested. Although the jury was so informed, apparently it did not request the exhibit. On appeal Kamiyama now asserts that “all specifications” in the perjury counts were erroneously translated and fatally ambiguous. Close examination of appellant’s contentions reveals that some of the points raised actually relate to sufficiency of the evidence as to falsity, not to accuracy of translation. In any event we address appellant’s “translations” contentions one count at a time. With respect to Count Nine, appellant asserts that while he was indicted for answering in the negative the question “did” Reverend Moon sign any documents dealing with stock," }, { "docid": "11414468", "title": "", "text": "obstruct the grand jury could not be shown. The Ninth Circuit’s decision in Ryan more closely supports Mullins’ claims. There, the alteration of documents occurred both before and after the grand jury’s subpoena. The court reversed defendant’s conviction because “[t]here was not an iota of evidence in the record showing any relevancy of [the altered documents] to the grand jury investigation.” Ryan, 455 F.2d at 734. In order to convict someone of violating § 1503, the government must prove that there was a judicial proceeding underway that the defendant’s actions were intended to obstruct. Cf. Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893) (construing predecessor statute to § 1503). A grand jury investigation is such a proceeding. United States v. Simmons, 591 F.2d 206, 208 (3d Cir.1979). The issue in Ryan, we believe, was whether the investigation was being conducted by the IRS, in which case § 1503 did not apply, or by the grand jury. Inasmuch as the grand jury in Ryan was never informed of the subpoenas and never reviewed the documents or any other evidence regarding the defendants, the court’s reversal seems clearly based on the ground that no “judicial proceeding” had been obstructed. Mullins’ attempt to convert “relevancy,” discussed by the Ryan court as a means of proving an ongoing judicial proceeding, into a separate element is unsupported by the language of § 1503 and, therefore, must fail. Therefore, we hold that the government need not prove, as an element of the crime, that the alterations made in response to a grand jury subpoena were relevant to the grand jury’s investigation. In the present case, the evidence conclusively showed that what Mullins did, he did in response to the grand jury’s subpoena. The alterations Mullins made and ordered were intended to deprive the grand jury of evidence that it had decided was relevant to its investigation. There is no authority requiring this court to second-guess the scope of the grand jury’s investigation or to reverse Mullins’ convictions simply because the abuses Mullins now contends he sought to hide" }, { "docid": "22815956", "title": "", "text": "to that jury’s investigation. Intent to obstruct justice is normally something that a jury may infer from all of the surrounding facts and circumstances. See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); cf. United States v. Dibrizzi, 393 F.2d 642, 644 (2d Cir.1968) (dealing with intent to embezzle). Were it not for the fact that the documents were subpoenaed, such an inference would doubtless have been permissible in this case. But here the ledger and loan agreements were produced pursuant to subpoena and even though there was ample proof of their being falsely backdated, there was no evidence of Kamiyama’s corrupt intent in producing them. Whether or not Kamiyama could have resisted production, as the government argues, evidence of this government theory was not before the trial jury. Without it, a reasonable doubt as to Kamiyama’s mens rea exists. Therefore, his Count Seven conviction must be reversed. B. False Declarations Before the Grand Jury Kamiyama also attacks his convictions under Counts Eleven, Twelve and Thirteen of the main indictment and the only count of the additional indictment (No. 194). As earlier noted, those counts charged Kamiya ma with making false declarations to a grand jury, in violation of 18 U.S.C. § 1623 (Supp. V 1981). That statute provides in pertinent part that “[wjhoever under oath ... in any proceeding before or ancillary to any ... grand jury of the United States knowingly makes any false material declaration” shall be guilty of a crime. 18 U.S.C. § 1623(a). Before addressing the precise issues raised some background information is necessary. In March 1981 Kamiyama appeared before the June 1980 Additional Grand Jury for the Southern District of New York (Grand Jury) but refused, on Fifth Amendment grounds, to testify. In July 1981 Kamiyama changed his mind and testified before both the Grand Jury and a substitute grand jury which was filling in for the Grand Jury while its members were on vacation. Counts Eleven, Twelve, Thirteen and No. 194 involve statements initially made and recorded before this substitute" }, { "docid": "22815955", "title": "", "text": "Kamiyama’s corrupt intent was adequately proved. In examining the evidence underlying this Count, we may look only to that evidence actually introduced before the pet-it jury. There would be no problem with the government’s contention had it introduced proof before the petit jury to the effect that Kamiyama had not only produced the questionable documents, but had also affirmatively vouched for their accuracy. Similarly, the government’s case would be more persuasive were there any evidence that Kamiyama had submitted the documents with the knowledge that, had he chosen, he could have resisted production on the grounds of self-incrimination. On both of these points the government fails to direct us to any portion of the trial record in which such evidence was brought to the petit jury’s attention. Nor have we, after reviewing the actual trial transcript, found any such evidence. What remains to be answered is whether the petit jury could still properly infer corrupt intent from the fact that Kamiyama submitted the false documents to the grand jury knowing that the documents were material to that jury’s investigation. Intent to obstruct justice is normally something that a jury may infer from all of the surrounding facts and circumstances. See United States v. Haldeman, 559 F.2d 31, 115-16 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); cf. United States v. Dibrizzi, 393 F.2d 642, 644 (2d Cir.1968) (dealing with intent to embezzle). Were it not for the fact that the documents were subpoenaed, such an inference would doubtless have been permissible in this case. But here the ledger and loan agreements were produced pursuant to subpoena and even though there was ample proof of their being falsely backdated, there was no evidence of Kamiyama’s corrupt intent in producing them. Whether or not Kamiyama could have resisted production, as the government argues, evidence of this government theory was not before the trial jury. Without it, a reasonable doubt as to Kamiyama’s mens rea exists. Therefore, his Count Seven conviction must be reversed. B. False Declarations Before the Grand Jury Kamiyama also attacks his convictions under Counts" }, { "docid": "22839679", "title": "", "text": "... or corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished____ 18 U.S.C. § 1503(a). And we have summarized its requirements as follows: “To be guilty of obstructing justice under § 1503, a defendant must have knowledge or notice of a pending judicial proceeding, and must have acted with the intent to influence, obstruct, or impede that proceeding in its due administration of justice.” United States v. Littleton, 76 F.3d 614, 619 (4th Cir.1996). Because evidence of intent will almost always be circumstantial, we have held that a defendant may be found culpable where the reasonable and foreseeable consequences of his acts are the obstruction of justice, concluding that “when a defendant intentionally seeks to corrupt, the foreseeable consequence of which is to obstruct justice, he has violated § 1503.” United States v. Neiswender, 590 F.2d 1269, 1274 (4th Cir.1979). The Supreme Court has held similarly that in order to convict under § 1503, the government need not demonstrate that justice was in fact obstructed but must prove only that “the endeavor [has] the natural and probable effect of interfering with the due administration of justice.” United States v. Aguilar, — U.S. -, -, 115 S.Ct. 2357, 2362, 132 L.Ed.2d 520 (1995) (internal quotes omitted). The evidence in this case showed that Edwin Brooks received a grand jury subpoena on January 19,1993, that demanded business records or documents concerning the sale and/or purchase of electrical components. While he produced many documents in response to the subpoena, he later testified that he did not include general corporate minutes because he did not understand the subpoena to require their production. In October 1993, Brooks received a letter stating that the grand jury had demanded to see the corporate minute books as well, and he produced these books in early November 1993. The government discovered, however, that the minutes had been altered or amended. When asked for the original versions, Brooks stated that he believed they had been destroyed. Over a year later, Brooks produced a portion of the original minutes," }, { "docid": "13461058", "title": "", "text": "of the “due administration” clause of 18 U.S.C. § 1503 or that he knew of such a proceeding. Vesich also contends that his perjury conviction must be reversed for evidential insufficiency and other grounds. He finally argues that trial testimony referring to “case fixing” and the bribery of a state judge substantially prejudiced his defense and requires a new trial as to both counts. Rejecting these contentions, we affirm. OBSTRUCTION OF JUSTICE Section 1503 is designed to protect individuals involved in federal judicial proceedings, as well as to prevent “miscarriage[s] of Justice by corrupt methods.” Samples v. United States, 121 F.2d 263, 265 (5th Cir.), cert. denied, 314 U.S. 662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). The language of section 1503 in effect in January 1982 was divisible into two parts. Its beginning and more specific language forbade corrupt endeavors to influence, intimidate or impede any witness, juror, or court official, while its concluding omnibus clause punished corrupt endeavors to influence, obstruct, or impede the “due administration of justice.” United States v. Howard, 569 F.2d 1331, 1333 (5th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 116, 58 L.Ed.2d 130 (1978). A prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator. Pettibone v. United States, 148 U.S. 197, 205-07, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893); Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941); Howard at 1337. A grand jury investigation is such a proceeding. Howard, supra. Vesich argues that no grand jury proceeding was pending at the time of the alleged obstruction of justice, because the evidence established only the possibility of such a proceeding. The trial judge instructed the jury that a pending judicial proceeding is one that has been “initiated but not yet settled or decided.” See United States v. Koehler, 544 F.2d 1326, 1328 n. 3 (5th Cir.1977). Vesich did not object to that instruction and does not do so on appeal. While pendency is clearly a requirement" }, { "docid": "11414467", "title": "", "text": "instruction such as that offered by Mullins. Rather, Bashaw merely illustrates the obvious point that where the conduct complained of occurred after the judicial proceeding was completed, no intent to obstruct that proceeding can be shown. In Bashaw, the only evidence of misconduct was that the defendant “stared” at the jurors during his brother’s trial and then made threatening comments to them after the trial was over. This court reversed a conviction under 18 U.S.C. § 1503, because there was “no evidence that the conduct which is the basis for the indictment could have interfered with the due administration of justice.” Bashaw, 982 F.2d at 171. Moon presented the opposite scenario. There, as in this case, the defendant produced fraudulently prepared documents in response to a grand jury subpoena. The court reversed the conviction, however, because — unlike the present case — the fraudulent creation of the documents was done before the jury subpoenaed the information and before such a subpoena could have been reasonably expected. Moon, 718 F.2d at 1222-23. Thus, an intent to obstruct the grand jury could not be shown. The Ninth Circuit’s decision in Ryan more closely supports Mullins’ claims. There, the alteration of documents occurred both before and after the grand jury’s subpoena. The court reversed defendant’s conviction because “[t]here was not an iota of evidence in the record showing any relevancy of [the altered documents] to the grand jury investigation.” Ryan, 455 F.2d at 734. In order to convict someone of violating § 1503, the government must prove that there was a judicial proceeding underway that the defendant’s actions were intended to obstruct. Cf. Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893) (construing predecessor statute to § 1503). A grand jury investigation is such a proceeding. United States v. Simmons, 591 F.2d 206, 208 (3d Cir.1979). The issue in Ryan, we believe, was whether the investigation was being conducted by the IRS, in which case § 1503 did not apply, or by the grand jury. Inasmuch as the grand jury in Ryan was never informed of" }, { "docid": "22815880", "title": "", "text": "the issues raised have been addressed. Those not discussed are minor points that we consider wholly without merit. We commend the manner in which Judge Goettel presided in this especially lengthy trial. Such errors as inevitably crept in were skillfully unearthed by counsel. Of course, defendants are only entitled to “a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Defendants did receive a fair trial and we affirm their convictions on all counts, except Kamiyama’s conviction on Count Seven which is reversed. BACKGROUND The main indictment upon which Reverend Moon and Mr. Kamiyama were tried charged them in Count One with conspiracy, 18 U.S.C. § 371, to file false federal income tax returns, 26 U.S.C. § 7206(1), to obstruct justice, 18 U.S.C. § 1503, and to make false statements to government agencies, 18 U.S.C. § 1001, and to a federal grand jury, 18 U.S.C. § 1623. Counts Two, Three and Four charged Moon with filing false tax returns for 1973,1974 and 1975, in violation of 26 U.S.C. § 7206(1). Counts Five and Six charged Kamiyama with aiding and abetting the filing of the false 1974 and 1975 returns, 26 U.S.C. § 7206(2). The remaining counts (Seven through Thirteen) charged Kamiyama with the substantive offenses of obstruction of justice through the submission of false documents to the grand jury, 18 U.S.C. § 1503, submitting false documents to the Department of Justice, 18 U.S.C. § 1001, and five counts of perjury, 18 U.S.C. § 1623. A separate indictment charged Kamiyama with an additional count of perjury. At the conclusion of the trial on May 18, 1982 the jury returned guilty verdicts against both defendants on all counts. Moon was sentenced to concurrent terms of 18 months in prison on Counts One through Four and fined $25,000 plus costs. Kamiyama was sentenced to concurrent terms of six months in prison on all counts of which he was convicted and fined $5,000. Both sentences have been stayed pending this appeal. Defendants moved in September 1982 for a new trial," }, { "docid": "14260279", "title": "", "text": "whether Moon and Kamiyama had violated federal law. In particular, the grand jury was interested in information concerning the defendants’ role, knowledge, and involvement in the Chase accounts, in Tong II Enterprises, and in the preparation of Moon’s tax returns. See Indictment ¶¶26, 30. It seems clear, therefore, that these inquiries cannot be deemed immaterial to the grand jury’s investigation. Kamiyama’s argument that the grand jury’s investigation could not have been hindered because these particular facts were not in dispute is specious. When Kamiyama testified that Moon never signed documents relating to Tong II and that Moon wrote only his signature on the checks, the grand jury was entitled to believe his testimony. If they did so and if his statements were false, “the natural effect would have been to impede the grand jury’s investigation.” United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972). Kamiyama’s second theory is not supported by the authorities. That the grand jury has evidence contradicting the witness’s testimony does not render that testimony immaterial. In United States v. Carson, supra, for example, the defendant was convicted of perjury as a result of his statement before the grand jury that he had never met particular individuals. Reasoning that other testimony heard by the grand jury was irrelevant to a determination of materiality, the Second Circuit held that the testimony was material despite the grand jury’s possession of tape recordings that clearly showed that the defendant had met these people. Id. at 436; accord, United States v. Williams, 552 F.2d 226, 230 (8th Cir. 1977); United States v. Phillips, supra, 540 F.2d at 328; United States v. Lee, 509 F.2d 645, 646 (2d Cir.) (per curiam), cert. denied, 422 U.S. 1044, 95 S.Ct. 2645, 45 L.Ed.2d 696 (1975). B. Counts Twelve and Thirteen The second aspect of Kamiyama’s challenge to the perjury counts of the indictment concerns counts twelve and thirteen. Count twelve alleges that Kamiyama made the following false declarations. (The allegedly false declarations are underlined.) Q. Let me show what has been" }, { "docid": "22815965", "title": "", "text": "indictment, and counsel for Kamiyama accepted those translations as being accurate. The government later obtained a superseding Count Twelve indictment which omitted the previously objected to language. At trial Kamiyama did not argue that the translation of the testimony set forth in the remaining false declaration counts was inaccurate. After the close of the evidence, the district court granted Kamiyama’s request to make the court translator’s translation an exhibit which the jury could see, if requested. Although the jury was so informed, apparently it did not request the exhibit. On appeal Kamiyama now asserts that “all specifications” in the perjury counts were erroneously translated and fatally ambiguous. Close examination of appellant’s contentions reveals that some of the points raised actually relate to sufficiency of the evidence as to falsity, not to accuracy of translation. In any event we address appellant’s “translations” contentions one count at a time. With respect to Count Nine, appellant asserts that while he was indicted for answering in the negative the question “did” Reverend Moon sign any documents dealing with stock, the question actually posed was whether Reverend Moon ever “had” to sign such documents. This claim of inaccurate translation was not raised in defendant’s pretrial motion to dismiss; nor did he attempt to bring the purported infirmity to the attention of the court or jury at trial. Consequently, the objection to Count Nine has not been preserved for appeal. See United States v. Bonacorsa, 528 F.2d 1218, 1222 (2d Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2647, 49 L.Ed.2d 386 (1976). The testimony underlying Count Ten, as set out in the indictment, is as follows: [False declarations or answers are underlined.] “Q. Did Reverend Moon carry the check book with him? A. He doesn’t, because I managed it. Q. You carried the check book with you from the very beginning of the account? A. Yes, I kept it myself from the beginning. Q. Did you sign any of the checks for Reverend Moon’s acéount? A. I never signed it myself, although I asked him for signature, and I made a request, but I never" }, { "docid": "22829454", "title": "", "text": "judgment of acquittal on Count 109 and moved for- a new trial on all counts pursuant, to Rule 33. The District Court denied both of these motions. In order to sustain its burden of proof for a conviction for the crime of corruptly endeavoring to influence, obstruct or impede the due administration of justice, the government must prove three essential elements: (1) that there was a pending judicial proceeding, (2) that the defendant knew this proceeding was pending, and (3) that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice. See United States v. Bashaw, 982 F.2d 168, 170 (6th Cir.1992); United States v. Williams, 874 F.2d 968, 979 (5th Cir.1989). Defendant argues that his conviction on Count 109 must be reversed for three reasons: (1) that the indictment failed to allege explicitly that defendant had knowledge of pending grand jury proceedings, (2) that the evidence at trial was insufficient to support a conviction, and (3) that the District Court erred in not including a supplementation to its jury instruction that defendant had requested. We consider these claims in turn. 1. Sufficiency of the Indictment Defendant argues that this indictment is insufficient because it failed to allege specifically that defendant had knowledge of the pending grand jury proceedings. We must decide whether the indictment, asserting that defendant “did corruptly endeavor to influence, obstruct, and impede the due administration of justice in a pending federal judicial proceeding, namely a Grand jury proceeding, by shredding and causing to be shredded books, records and other documents of and relating to the World Basketball League,” sufficiently alleged the essential element of knowledge. See Pettibone v. United States, 148 U.S. 197, 206, 13 S.Ct. 542, 37 L.Ed. 419 (1893) (holding under predecessor to § 1503, that indictment “is not sufficient unless it appears the [defendant] knew or had notice that justice was being administered in such a court”). We affirm the District Court’s decision that it did. Our inquiry into the sufficiency of an indictment focuses on two factors: In general an indictment is constitutionally adequate “if it, first," }, { "docid": "22815975", "title": "", "text": "Clauses by inviting the jury to treat the Church’s practice of soliciting cash contributions from the public as suspect. But the charge clearly refers to Moon’s conduct and not Unification Church practices. . We note that the Unification Church members’ mode of living, evidence of which appellants claim amounts to religious innuendo, is also prevalent in certain centuries-old orders of Christians and Buddhist monks. . Our decision on the materiality issue does not intrude on appellant’s double jeopardy rights under the Fifth Amendment since it neither necessitates a retrial nor has the effect of setting aside a judgment of acquittal on the merits. See Berardi, 629 F.2d at 730; cf. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (double jeopardy protects against a second trial for the same offense); United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (judgment of acquittal may not be appealed and terminates prosecution when reversal would necessitate new trial). We have merely adopted another basis for affirming the district court’s conclusion that Kamiyama’s substitute grand jury statements were material. . Citing United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir.1972), Kamiyama also contends that the prosecution abused the grand jury process by not having it reevaluate all of the perjury counts in light of the court-appointed translator’s findings. This claim is meritless; even Kamiyama concedes that the translator’s findings generally accorded with the allegedly perjurious language set forth in the indictment. Where there were material variances, for example in Count Twelve, the government did resubmit its case to the grand jury. . Kamiyama’s final contentions regarding his perjury convictions are: (1) that the government breached some obligation on its part to insure at the grand jury level that Kamiyama’s erroneous answers were in fact intentional lies rather than mere negligent mistakes; and (2) that his false answers underlying Counts Nine and Ten were immaterial because the grand jury already had in its possession information contradicting his testimony. The district court rejected these arguments in its published decision see 532" }, { "docid": "22815962", "title": "", "text": "case; and the substitute grand jury actively participated in the proceedings by asking numerous questions relating to the handling of Moon’s tax and business affairs and by requesting the production of documentary evidence. If the substitute grand jury cannot be said to have been investigating Moon’s tax affairs when it was asking Kamiyama about those affairs, it is difficult to perceive exactly what it was doing. Since both grand juries were investigating Moon’s tax affairs, it seems somewhat illogical to say that Kamiyama’s answers were immaterial when given to the substitute grand jury, but material, as the district court found they were, when repeated verbatim to the indicting Grand Jury. Our examination of the questions and responses in issue further strengthens our conviction that they were material to both grand juries’ inquiries. The questions and answers set forth in Counts Eleven, Twelve, Thirteen and No. 194 do not deal simply with tangential matters of no relevance to the instant prosecution. Instead, they are concerned with the sources of Moon’s Chase accounts funds, the Family Fund Ledger, the acquisition of the Tong II stock, and the manner in which Moon conducted his business affairs. These matters were at the very heart of both grand juries’ inquiries and related to the critical issues at trial. As a matter of common sense, we do not believe there is any basis to label them immaterial. C. Claimed Translation Inaccuracies Kamiyama further contends with respect to his perjury convictions that he was impermissibly indicted and convicted for statements he did not give. Because his principal language was Japanese, he addressed the grand juries through an interpreter. At the request of counsel tape recordings were made of Kamiyama’s grand jury statements. After being indicted for perjury in October 1981, Kamiyama received copies of the tape recordings of his testimony. After they were reviewed by defense counsel Kamiyama moved to dismiss certain specifications contained in Counts Ten through Thirteen on the ground that the allegedly perjurious language did not accurately reflect what he had actually said to the grand jury. He also requested that a court-appointed translator" }, { "docid": "224550", "title": "", "text": "intent to impede justice, and often with the same knowledge or lack of knowledge as to whether the grand jury itself has already assumed an active role in the investigation. Furthermore, the prosecutorial authorities could easily nullify the effect of such a rigid rule by adding to their procedures the formal act of advising the grand jury of the subpoena when it is issued. Consequently, rather than require that the grand jury be cognizant of the subpoena or otherwise involved in the investigation, we hold that an investigation by a law enforcement agency ripens into a pending grand jury investigation for purposes of § 1503 when officials of such agency apply for, and cause to be issued, subpoenas to testify before a sitting grand jury. To the extent that, as demonstrated by Ryan, “a grand jury subpoena may become an instrumentality of an investigative agency, without meaningful judicial supervision,” we reiterate our conviction that the remedy against such abuse is not to establish a rigid rule, but “rather to continue to inquire, in each case, whether the subpoena is issued in furtherance of an actual grand jury investigation, i. e., to secure a presently contemplated presentation of evidence before the grand jury.” Walasek, supra. Besides challenging his conviction on the ground that no grand jury investigation was pending, Simmons raises other grounds for reversal. We have reviewed each of these contentions and find them to be without merit. Accordingly, the judgment of the district court will be affirmed. . The government established its case through the testimony of three of the defendant’s employees, a tape recording of happenings in the defendant’s office subsequent to the service of the subpoena, and documents retrieved from two trash bags seized at the defendant’s office by the FBI pursuant to a warrant. . Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893); United States v. Walasek, 527 F.2d 676 (3d Cir. 1975); United States v. Metcalf, 435 F.2d 754 (9th Cir. 1970); United States v. Peristein, 126 F.2d 789 (3d Cir.) cert. denied, 316 U.S. 678, 62 S.Ct. 1106," }, { "docid": "22815954", "title": "", "text": "intent corruptly to impede its investigation, in violation of 18 U.S.C. § 1503 (Supp. Y 1981), must be set aside. Specifically, he asserts that he only submitted the documents in question (the Family Fund Ledger and European Loan Agreements) to the grand jury because it had subpoenaed them and that there was insufficient evidence that he intended to impede its investigation. In response to this challenge, the government answers that Kamiyama’s corrupt intent was adequately demonstrated by the facts that he could have resisted production of the documents on Fifth Amendment grounds and that he vouched for the accuracy of the documents in his testimony before the grand jury. Specific intent to impede the administration of justice is an essential element of a § 1503 violation, United States v. Ryan, 455 F.2d 728, 734 (9th Cir.1972) (citing Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893)), which the government must establish beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution, we are unpersuaded that Kamiyama’s corrupt intent was adequately proved. In examining the evidence underlying this Count, we may look only to that evidence actually introduced before the pet-it jury. There would be no problem with the government’s contention had it introduced proof before the petit jury to the effect that Kamiyama had not only produced the questionable documents, but had also affirmatively vouched for their accuracy. Similarly, the government’s case would be more persuasive were there any evidence that Kamiyama had submitted the documents with the knowledge that, had he chosen, he could have resisted production on the grounds of self-incrimination. On both of these points the government fails to direct us to any portion of the trial record in which such evidence was brought to the petit jury’s attention. Nor have we, after reviewing the actual trial transcript, found any such evidence. What remains to be answered is whether the petit jury could still properly infer corrupt intent from the fact that Kamiyama submitted the false documents to the grand jury knowing that the documents were material" }, { "docid": "22815953", "title": "", "text": "which violates the First Amendment because, when read in conjunction with the court’s accompanying memorandum decision, it placed a prior restraint on all Unification Church members, forbidding them from communicating with the media on the subject of jury prejudice in Moon’s case. Aside from the fact that the memorandum does not say this, such a reading of the clear, unambiguous language of the restraining order is far-fetched. While the accompanying memorandum sheds light on the court’s reasons for imposing and power to impose the restraint against jury contact, it is gratuitous insofar as the content of the order itself is concerned. Moreover, we lack appellate jurisdiction to re view this order and mandamus is inappropriate where, as here, the district court’s power to act as it did is unquestionable. See Miller v. United States, 403 F.2d 77 (2d Cir.1968) (no appellate jurisdiction, and virtually identical order condoned). V KAMIYAMA CLAIMS A. Intent to Impede the Grand Jury Investigation Kamiyama contends that his conviction for knowingly submitting false and misleading documents to the grand jury with intent corruptly to impede its investigation, in violation of 18 U.S.C. § 1503 (Supp. Y 1981), must be set aside. Specifically, he asserts that he only submitted the documents in question (the Family Fund Ledger and European Loan Agreements) to the grand jury because it had subpoenaed them and that there was insufficient evidence that he intended to impede its investigation. In response to this challenge, the government answers that Kamiyama’s corrupt intent was adequately demonstrated by the facts that he could have resisted production of the documents on Fifth Amendment grounds and that he vouched for the accuracy of the documents in his testimony before the grand jury. Specific intent to impede the administration of justice is an essential element of a § 1503 violation, United States v. Ryan, 455 F.2d 728, 734 (9th Cir.1972) (citing Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893)), which the government must establish beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution, we are unpersuaded that" }, { "docid": "1370245", "title": "", "text": "to Gauthier’s informing Capo in February 1983 that he intended to testify before the grand jury, included Capo’s gratuitous disclaimer that he was a member of the “mob,” and his dropping the name of the brother of a known organized crime figure in connection with his advice that if everyone kept silent there would be no problem. Capo’s contention that his statements, including his references to organized crime, were too ambiguous to be construed as threats was an argument more properly addressed to the jury. The jury was free to reject it, as it apparently did. We see no sound basis for overturning the verdict. C. Obstruction of Justice Both Ted and Capo challenge their convictions for obstruction of justice in violation of 18 U.S.C. § 1503. Section 1503 makes it unlawful for a person corruptly or by threats or force, or by any threatening letter or communication, [to] influence[], obstruct[], or impede[], or [to] endeavorf] to influence, obstruct, or impede, the due administration of justice. To obtain a conviction under this section, the government must show that there was a pending judicial proceeding, such as a grand jury proceeding, United States v. Fayer, 573 F.2d 741, 745 (2d Cir.) (“Corrupt advice under 18 U.S.C. § 1503 must relate to an investigation by the grand jury, not the F.B.I.”), cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); United States v. Vesich, 724 F.2d 451, 454 (5th Cir.1984), and that the defendant knew of and sought to influence, impede, or obstruct the judicial proceeding, id.; see Pettibone v. United States, 148 U.S. 197, 205-07, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893) (construing Rev.Stat. § 5399, a predecessor of § 1503). Capo contends that the evidence was insufficient to support his conviction under this section because it was not clear that his conversations with Frechette instructed Frechette to refuse to talk to the grand jury rather than to the FBI. Ted contends that the evidence was insufficient to support his conviction because there was no proof that he knew, when he urged Scavo not to talk, that" }, { "docid": "22815941", "title": "", "text": "(submission of false tax return not relevant as to whether defendant intended to submit false Medicaid claims, and vice versa). Admission of this irrelevant evidence constituted an abuse of the trial court’s discretion. Nevertheless, in light of the strong evidence relating to Moon’s intent to file false tax returns, see Section IIA.(2) supra, the error must be deemed harmless. See United States v. Quinto, 582 F.2d 224, 235 (2d Cir.1978). With respect to Kamiyama’s claim of spillover, the trial court’s charge contained the cautionary instruction that the immigration documents were to “have no bearing on the case against [Kamiyama].” This instruction, coupled with the fact that the government made no claim that Kamiyama had any connection with the Moons’ immigration papers, was sufficient to safeguard adequately against impermissible prejudice. See United States v. Reed, 639 F.2d 896, 907 (2d Cir.1981). Kamiyama’s major claim of evidentiary error relates to the admission of an IRS certificate indicating that there was no record of Kamiyama having filed federal income tax returns for the years 1973 and 1974. It was the government’s contention that the certificate was relevant on the issue of Kamiyama’s motive to create the Family Fund Ledger. Purportedly, Kami yama paid $10,000 cash for 100 shares of Tong II stock in 1973 and $110,000 cash for 1,100 shares of Tong II stock in 1974. The government argued that this “untraceable” cash was income and that to cover up the source of this money Kamiyama concocted the Family Fund Ledger. Since precisely the same scenario was established to account for the cash deposits in Moon’s Chase accounts, the jury was entitled to infer from Kamiyama’s conduct, so the government argues, that his handling of Moon’s returns was with the requisite criminal intent and knowledge. Nonetheless, there was no proof that Kamiyama had income sufficient to require him to file a tax return for the years in question. Simply purchasing stock with cash is not proof that Kamiyama had taxable income, since the cash might have come from some other source, see Marcus v. United States, 422 F.2d 752, 755 (5th Cir.1970). Lacking" } ]

[ { "docid": "22139878", "title": "", "text": "deny applications for funds for noncomplying programs, § 142, 20 U. S. C. §241f. Further, they contend that the 1978 Amendments operated prospectively only. The Secre tary has argued both that the 1978 Amendments had retroactive effect and that the right of recovery existed in the pre-1978 version of ESEA. Since we are persuaded that the pre-1978 version contemplated that States misusing federal funds would incur a debt to the Federal Government for the amount misused, we need not address the possible retroactive effect of the 1978 Amendments. Section 207(a)(1) as added by ESEA, Pub. L. 89-10, 79 Stat. 32, originally provided: “The Commissioner shall, subject to the provisions of § 208 [dealing with inadequate appropriations], from time to time pay to each State, in advance or otherwise, the amount which the local educational agencies of that State are eligible to receive under this part. Such payments shall take into account the extent (if any) to which any previous payment to such State educational agency under this title (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it.” This provision, which remained substantially unchanged as part of Title I until 1970, in our view, gives the Federal Government a right to the amount of any funds overpaid. The plain language of the statute recognizes the right, and the legislative history supports that natural reading. The Senate Report explained: “[S]ince the State is given no authority to retain excess sums paid to it under the title, any excess paid to a State would have to be returned or taken into account in making subsequent payments to the State.” S. Rep. No. 146, 89th Cong, 1st Sess., 14 (1965). Indeed, the Committee obtained assurances from the Department that it would recapture these payments, and the debate on the floor termed those assurances “an essential condition for enacting the proposed legislation.” 111 Cong. Rec. 7690 (1965). In 1970, Congress enacted GEPA, Pub. L. 91-230, 84 Stat. 164, the main function of which was to bring the general provisions of prior law" } ]

[ { "docid": "9540120", "title": "", "text": "an administrative agency alone is authorized to make.” Chenery, supra. A similar question of statutory interpretation was at issue in Milk Transport v. Interstate Commerce Commission, 190 F.Supp. 350 (D.Minn.1960), aff’d per curiam 368 U.S. 5, 82 S.Ct. 15, 7 L.Ed.2d 16 (1961). The court concluded that Chenery was not applicable: We are not concerned here with a judgment which only the Interstate Commerce Commission can make. The expertness of the Commission does not make it better qualified than this court to interpret the phrase ... involved in this action. The interpretation here is wholly different from what it is in the case where Congress specifically entrusts an administrative agency, because of its special competence, with the task of defining or interpreting general words or setting up standards or rules of conduct. We are interpreting the scope of a federal statute and this task is not peculiar to an administrative agency. 190 F.Supp. at 355. (footnote omitted). Ill The Secretary of Labor raises three grounds in support of his authority to require repayment by North Carolina. First, the Secretary argues that the 1973 Act includes a right of recovery. The Secretary also contends that the 1978 Act, which Congress amended to provide expressly for recovery of misused funds, may be applied retroactively to reach funds administered under the earlier act. Labor’s third argument is that there is a common law right of recovery. Following the lead of Bell, we find that a right of recovery exists under the 1973 Act, and therefore we need not reach the issues of whether recovery is also authorized by retroactive application of the 1978 amendments or by the common law. In Bell the Court found that the argument that ESEA contained a recoupment right was supported by the language, the legislative history and the administrative interpretation of the statute. We are persuaded that the language, the evidence of legislative intent, the administrative inter pretation and the overall rationale of the 1978 CETA Act are sufficiently similar to that of ESEA to mandate a finding that the Department of Labor may order repayment of misapplied" }, { "docid": "9540125", "title": "", "text": "omitted). The CETA Act of 1973 replaced a number of earlier federal employment and training programs. Although the earlier laws provided no express right of recoupment, the Secretary of Labor routinely audited grantees, disallowed costs and recovered misspent funds. See Midlands Community Act Agency, 73-1 BCA ¶ 9790 (November 30, 1972) (EOA and MDTA); Metropolitan Denver Construction Opportunity Policy Committee, 74-2 BCA ¶ 10,749 (November 30, 1973) (MDTA); Cooperative League of U.S.A., 74-2 BCA ¶ 10,768 (August 14, 1974) (MDTA), aff’d, 578 F.2d 1390 (Ct.Cl., 1978). North Carolina’s final objection is that the CETA Act of 1973 does not meet the mandate of Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981) that Congress act unambiguously when it intends to impose a condition on the grant of federal money. We think that the Supreme Court’s two grounds for distinguishing Pennhurst with respect to ESEA are equally applicable to CETA. The Court found that the plain language of ESEA was sufficiently clear to meet Pennhurst’s requirement of legislative clarity and that Penn-hurst involved imposition of an unexpected condition of compliance while in Bell the Court was concerned with remedies available against a noncomplying State. 103 S.Ct. at 2197 n. 17. IV Having decided that the Department of Labor has the authority to recoup misspent funds, we must address the issue of whether there is substantial evidence to support the Secretary’s conclusion that the moneys were improperly expended. 29 U.S.C. § 817(b) (1978). The State argues, however, that it was not responsible for these instances of inadequate administration. We disagree. In the overall scheme of the CETA Act, although a grantee may enter into contracts and sub-grants, the grantee retains the responsibility for development, approval and operation of all grants and subgrants. Milwaukee County v. Peters, 682 F.2d 609, 612-613 (7th Cir.1982). The regulations provide that the prime sponsor shall require that its contractors and subgrantees adhere to the requirements of the Act, regulations and other applicable law. 29 C.F.R. § 98.27. North Carolina’s responsibility under the legislative scheme is clear and" }, { "docid": "22139907", "title": "", "text": "J. 927, 944, and n. 71 (1973); Murphy, Title I of ESEA: The Politics of Implementing Federal Education Reform, 41 Harv. Educ. Rev. 35, 44-45 (1971). Pennsylvania also suggests that “overpayment” means only funds that are not expended but remain in the State’s treasury. Brief for Respond ent Pennsylvania 31. We see no indication of such a limitation in the statutory language or in the legislative history, and, indeed, we would find it difficult to believe that Congress meant to permit States to obtain good title to funds otherwise owing to the Federal Government by the simple expedient of spending them. The Court of Appeals relied on the argument in deciding that § 424 of GEPA, now renumbered as § 437, did not recognize the liability of the States to refund misused funds. The argument applies equally to § 415. The States have also argued that Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), requires a different view of the effect of the pre-1978 version of the statute. Pennhurst required that Congress act “unambiguously” when it intends to impose a condition on the grant of federal money. Id., at 17. The States argue that Congress did not speak unambiguously before 1978 in imposing liability and it therefore was not effective in imposing liability. We disagree. As our discussion shows, we think that the plain language of the statute is sufficiently clear, and ESEA meets Pennhurst’s requirement of legislative clarity. Moreover, Pennhurst arose in the context of imposing an unexpected condition for compliance — a new obligation for participating States — while here our concern is with the remedies available against a noncomplying State. Justice White, concurring. The Court holds that the “plain language” of § 207(a)(1) of the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 32, and its successor provision, §415 of the General Education Provisions Act, 20 U. S. C. § 1226a-l (1976 ed., Supp. V), expressly grants the Secretary of Education (1) the right to require States to repay misspent Title I funds, and (2) the right to make" }, { "docid": "4218727", "title": "", "text": "2190 (codified at 20 U.S.C. § 2835(b)). The States challenged the Secretary’s authority to recover funds misspent between 1967 and 1973, arguing, like appellant here, that no authority to demand repayment existed prior to 1978 and that the 1978 amendments operated prospectively only. The Court, in an opinion by Justice O’Connor, readily ruled in favor of the Government. She found that “[t]he plain language of the statute recognizes the [Government’s] right” to recover misspent funds because no other plausible reading would explain the meaning of the statutory command to “take into account the extent (if any) to which any previous payment” was too large. Id. at 783 & n. 8, 103 S.Ct. at 2193 & n. 8. She examined the legislative history and concluded that it “supports this natural reading.” Id. at 783-84 & n. 9, 103 S.Ct. at 2193-94 & n. 9. Justice O’Con-nor also placed reliance on the fact that “[t]he Department [of Education] has long held our view of the statute, for it often sought repayment of misused funds.” Id. at 786-87, 103 S.Ct. at 2194-95. Finally, she relied for “persuasive value” on the support of later Congresses, placing particular emphasis on statements from the legislative history of the 1978 amendments to ESEA that reflected the understanding that authority to order repayment already existed. Id. at 785, 789-90, 103 S.Ct. at 2194, 2196-97. In response to the State’s argument that this interpretation of the earlier provisions of ESEA rendered the 1978 amendment redundant, Justice O’Con-nor explained that the 1978 amendments were intended to clarify the Secretary’s authority by “specifying the procedures to be followed in the determination of the amount of the debt and in the collection of the debt.” Id. at 788-89,103 S.Ct. at 2195-96. Relying on Bell, the Third Circuit in Atlantic County v. United States Dep’t of Labor, 715 F.2d 834, 836 (3 Cir.1983) (per curiam), and the Fourth Circuit in North Carolina Comm’n of Indian Affairs v. United States Dep’t of Labor, 725 F.2d 238, 240-41 (4 Cir.), cert. denied, — U.S. -, 105 S.Ct. 112, 83 L.Ed.2d 55 (1984), concluded that the" }, { "docid": "4218729", "title": "", "text": "Secretary had authority to order direct repayment of misspent funds under the 1973 CETA. These decisions were followed in Texarkana Metropolitan Area Manpower Consortium v. Donovan, 721 F.2d 1162, 1164 (8 Cir.1983) (per curiam); California Tribal Chair man’s Ass’n v. United States Dep’t of Labor, 730 F.2d 1289, 1291 (9 Cir.1984); Mobile Consortium of CETA Alabama v. United States Dep’t of Labor, 745 F.2d 1416, 1418 (11 Cir.1984). None of these cases dealt with an argument, which also has not been made by the Tribe here, that could have been made on the basis of footnote 4 of the Bell opinion, which we quote in the margin, that Bell addressed only the question whether the Government had a right under ESEA to recover misspent funds and not the available remedies. Cf. Maryland Dep’t of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1453-1462 (D.C.Cir.1985) (finding that Bell does not include remedies available in context of misspent federal grants under title XX of the Social Security Act). However, any possible doubt on that score was dispelled when the Supreme Court, again speaking through Justice O’Connor, approved a repayment order by the Department of Education for misspending ESEA funds provided in 1974. Bennett v. Kentucky Dep’t of Education, — U.S. -, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985). Even without Bell and Bennett, the history and administrative background of the 1973 Act require the conclusion that the Secretary had authority under the 1973 CETA to order repayment of misspent funds by prime sponsors. CETA replaced the Manpower Development and Training Act, Pub.L. No. 87-415, 76 Stat. 23 (1962), the Economic Opportunity Act of 1964, Pub.L. No. 88-452, 78 Stat. 508 (1964), and the Emergency Employment Act of 1971, Pub.L. No. 92-45, 85 Stat. 146 (1971). See 1973 CETA, § 3, 87 Stat. 839. Like the 1973 CETA, these earlier acts contained no provisions expressly authorizing orders for repayment of misused funds and provided only for adjustment or withholding of payments. However, as noted by the Third Circuit in Atlantic County, supra, in administering these programs, the Secretary of" }, { "docid": "4218725", "title": "", "text": "expressly authorized him to order repayment should not be applied retroactively to grants which, like these here at issue, were made prior to 1978. The Secretary contends that he did have authority to order repayment under the 1973 Act, and, alternatively, that he has a common-law right to recover misspent funds in CETA administrative proceedings. Since we hold there was authority to order direct repayment under the 1973 Act, we need not reach the issues of the 1978 Act’s retroactivity or the Government’s common-law rights. Relying on Bell v. New Jersey, 461 U.S. 773, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983), the Secretary finds statutory authority to order repayment in the language of § 602(b) of the 1973 CETA, 87 Stat. 878, which authorizes him to make “necessary adjustments in payment on account of over-payments and underpayments.” In Bell, the Secretary of Education sought repayment from the States of New Jersey and Pennsylvania for misuse of federal grants under the Elementary and Secondary Education Act (ESEA), Pub.L. No. 89-10, 79 Stat. 27 (1965), 20 U.S.C. §§ 2701-3386 (as amended). ESEA created a program to improve educational opportunities for disadvantaged children that is similar to CETA in many respects: local educational agencies obtain grants from state agencies, which, in turn, obtain grants from the Department of Education upon providing assurances that the local agencies will spend the funds only on qualifying programs. As originally enacted, ESEA, like CETA, did not expressly provide for the repayment of misspent funds, but did provide that in disbursing payments under the Act the Secretary should take into account the extent (if any) to which any previous payment to such State educational agency under this title (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it. § 207(a)(1), 79 Stat. 32 (quoted in Bell, supra, 461 U.S. at 782). Congress amended ESEA in 1978, as it amended CETA, and made explicit the Secretary’s authority to recover funds misused by a recipient. See Education Amendments of 1978, Pub.L. No. 95-561, § 185(b), 92 Stat. 2143," }, { "docid": "9540118", "title": "", "text": "the Court of Appeals for the Third Circuit in Atlantic County New Jersey v. United States Department of Labor, 715 F.2d 834 (3rd Cir.1983), we hold that the authority to require repayment of improper expenditures existed under the 1973 CETA Act. Finding also that there was substantial evidence to support the Secretary of Labor’s conclusion that the funds were improperly expended or inadequately monitored and that North Carolina was responsible for insuring that the grant was properly administered, we affirm the Secretary’s repayment order. I The two North Carolina governmental agencies, as “prime sponsors” under the 1973 CETA Act, received grant funds from the Department of Labor and contracted with subgrantees for expenditure of the funds. Grantees and subgrantees receive CETA funds prior to expenditure instead of being reimbursed by the Department of Labor after moneys are expended. Since the grants were awarded prior to 1978, the provisions of the 1973 Act control. Following an audit and a grants officer’s determination that certain funds had been misused, the Administrative Law Judge (ALJ) issued orders instructing the Commission to repay $34,147.19 and the Department, $101,-464.58. These orders became final decisions of the Secretary. II North Carolina questions whether the rule of S.E.C. v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) that “a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency” precludes this court from affirming the ALJ’s order based on an interpretation of the 1973 CETA Act that differs from the ALJ’s interpretation. (The AU found that the “1973 statute by implication authorized the Department of Labor to obtain repayment from the State of moneys, paid to ineligible applicants.” Based on the reasoning of Bell, we find that repayment authority is found in the language of the 1973 statute.) We do not, however, perceive there to be a Chenery problem in the instant case because the question of interpretation of a federal statute is not “a determination or judgment which" }, { "docid": "9540122", "title": "", "text": "moneys. Section 602(b) of the 1973 CETA Act provided in part: The Secretary may make ... necessary adjustments in payments on account of overpayments or underpayments. The Secretary may also withhold funds otherwise payable under this chapter, but only in order to recover any amounts expended in the current or immediately prior fiscal year in violation of any provision of this chapter. North Carolina contends that the withholding provision gives the only available remedy in the event of noncompliance by a grantee. In Bell, however, the Court found that in a similar provision of ESEA, the “plain language of the statute” recognized the right of the federal government to overpaid funds. 103 S.Ct. at 2193. The Bell court also found that to adopt the State’s view of set-off as the only remedy would allow the State to escape liability for misuse of the moneys while penalizing those who were intended to benefit from the programs by reducing the amount of funds that the beneficiaries would actually receive. 103 S.Ct. at 2192 n. 5 and 2193 n. 8. North Carolina seeks to distinguish § 602(b) from the provision of ESEA relied on in Bell to authorize repayment. The State’s argument is that only the withholding sanction, and not the adjustments in payments language, applies to recoupment of amounts expended in violation of the act. North Carolina contends that any other construction would render the last sentence of § 602(b) redundant or largely superfluous. The argument is refuted, however, by the fact that ESEA also provided for withholding funds from a State that failed to comply with the requirements of the program. Section 146, 20 U.S.C. § 241j. Moreover, in providing that the Secretary “may also withhold funds” the language of § 602(b) indicates that remedies other than withholding are available to the Department of Labor. North Carolina argues that, because the 1978 amendments expressly provided for right of repayment, there was no similar right under the 1973 Act, otherwise the later amendments would be redundant. The Bell Court was faced with the issue of later amendments to ESEA that clearly provided" }, { "docid": "4218724", "title": "", "text": "insure an expeditious remedy for CETA program beneficiaries who had been denied CETA benefits due to misuse of funds by prime sponsors, and that one House of Congress stipulated that the deadline should not affect the Secretary’s jurisdiction. Under such circumstances, as in Usery v. Whitin Mach. Works, Inc., supra, 554 F.2d at 503, “[i]t would be ironic indeed,” to hold that Congress’ concern for speedy resolution of complaints was to be at the expense of the persons for whose benefit § 106(b) was enacted. II. The Secretary’s Authority to Order Repayment as a Remedy The Tribe argues that if the Secretary’s finding of its use of grant moneys in violation of CETA was not time-barred, the portion of his order directing repayment still cannot stand. This contention rests on two propositions: (1) that the Secretary had no authority under the 1973 CETA to order direct repayment by prime sponsors from non-CETA funds, his remedy being restricted to offsetting disallowed expenses against future CETA payments, and (2) that the provisions of the 1978 CETA which expressly authorized him to order repayment should not be applied retroactively to grants which, like these here at issue, were made prior to 1978. The Secretary contends that he did have authority to order repayment under the 1973 Act, and, alternatively, that he has a common-law right to recover misspent funds in CETA administrative proceedings. Since we hold there was authority to order direct repayment under the 1973 Act, we need not reach the issues of the 1978 Act’s retroactivity or the Government’s common-law rights. Relying on Bell v. New Jersey, 461 U.S. 773, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983), the Secretary finds statutory authority to order repayment in the language of § 602(b) of the 1973 CETA, 87 Stat. 878, which authorizes him to make “necessary adjustments in payment on account of over-payments and underpayments.” In Bell, the Secretary of Education sought repayment from the States of New Jersey and Pennsylvania for misuse of federal grants under the Elementary and Secondary Education Act (ESEA), Pub.L. No. 89-10, 79 Stat. 27 (1965), 20 U.S.C." }, { "docid": "3587764", "title": "", "text": "continuing to draw her salary as a teacher. She was also at that time assured of employment commencing on August 16, 1976, under the employment contract that she had signed before applying for the CETA job. “A school teacher seeking summer employment is not within the contemplation of the Act, which was designed to aid economically disadvantaged, unemployed or underemployed persons.” ALJ Opinion, p. 2. We agree with the ALJ’s reasoning and conclusion that Ms. Jones was receiving earnings within the thirty days preceding her July 23, 1976 application for the CETA job and was not an unemployed person. The Consortium contends that the repayment sanctions Congress enacted in 1978 do not authorize the Secretary to recover CETA funds allegedly misspent in 1976. In response, the Secretary argues that the Consortium failed to raise the issue during the agency administrative proceeding. While we could rule that such failure precludes our review of this issue, Franklin County Employment and Training Administration v. Donovan, 707 F.2d 41 (2d Cir.1983); Pierce County v. United States, 699 F.2d 1001 (9th Cir.1983), we think it is abundantly clear that the Secretary has such authority. The Third Circuit in Atlantic County, New Jersey v. U.S. Department of Labor, 715 F.2d 834 (3d Cir.1983) (per curiam), recently held that the 1973 CETA statute, as well as the 1978 enactments, authorizes recovery for misspent funds. The court interpreted Section 602(b) of the 1973 CETA statute, 29 U.S.C. § 982(b), which authorizes the Secretary of Labor to make “necessary adjustments in payments on account of overpayments or underpayments,” to create a right to recover misspent funds, not merely a right of setoff against future grants. In so doing, the Third Circuit expressly followed the approach of the Supreme Court in Bell v. New Jersey & Pennsylvania, — U.S. —, 103 S.Ct. 2187, 76 L.Ed.2d 313 (1983), which held that similar language in the Elementary and Secondary Education Act permits the government to recoup funds misspent under the ESEA. The Third Circuit examined the legislative history of the 1973 CETA statute in detail to confirm that Congress was presumptively aware" }, { "docid": "9540124", "title": "", "text": "for the federal government’s right to demand repayment when states misused grant moneys. The Court concluded that the discussion of the 1978 amendments to ESEA, which were of persuasive value, revealed that Congress thought that recipients were already liable for misused funds. 103 S.Ct. at 2194. The comments made by members of Congress during the debates on the 1978 CETA amendments indicate that they assumed the existence of a right of recovery and approved of the Department of Labor’s pre-1978 practice of actually recouping funds. The Congressional intent in amending the CETA Act in this manner appears to have been to clarify a pre-existing right and not to provide Labor with new authority. The agency’s practice of ordering that funds be reimbursed prior to the 1978 amendments also supports Labor’s argument that a right of recovery existed under the 1973 Act. As observed by the court in Atlantic County, recoupment under CETA’s predecessors amounted to “more than the Tong held’ view of an agency which the Bell court found persuasive.” 715 F.2d at 836 (citation omitted). The CETA Act of 1973 replaced a number of earlier federal employment and training programs. Although the earlier laws provided no express right of recoupment, the Secretary of Labor routinely audited grantees, disallowed costs and recovered misspent funds. See Midlands Community Act Agency, 73-1 BCA ¶ 9790 (November 30, 1972) (EOA and MDTA); Metropolitan Denver Construction Opportunity Policy Committee, 74-2 BCA ¶ 10,749 (November 30, 1973) (MDTA); Cooperative League of U.S.A., 74-2 BCA ¶ 10,768 (August 14, 1974) (MDTA), aff’d, 578 F.2d 1390 (Ct.Cl., 1978). North Carolina’s final objection is that the CETA Act of 1973 does not meet the mandate of Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981) that Congress act unambiguously when it intends to impose a condition on the grant of federal money. We think that the Supreme Court’s two grounds for distinguishing Pennhurst with respect to ESEA are equally applicable to CETA. The Court found that the plain language of ESEA was sufficiently clear to meet Pennhurst’s requirement" }, { "docid": "13162010", "title": "", "text": "has not asked us to decide what means of collection are available to him, but only whether he is a creditor,” 461 U.S. at 779 n. 4,103 S.Ct. at 2191 n. 4, the Court stated that “[sjince the case does not present the issue of available remedies, we do not address it.” Id. This same dichotomy between right and remedy then led the Bell Court to redefine the dispositive issue in the case, which the court of appeals had put in terms of “the statutory power of the Agency to order repayment of the misspent or misapplied funds,” New Jersey Department of Education v. Hufstedler, 662 F.2d 208, 216 (3d Cir.1981), in terms of whether Title I “contemplated that States misusing federal funds would incur a debt to the Federal Government for the amount misused.” 461 U.S. at 782, 103 S.Ct. at 2192. The Supreme Court’s formulation thus made the issue whether or not the Secretary had a statutory “right of recovery.” Id. The pre-1978 ESEA provision that was in effect when the funds at issue in Bell were misspent read as follows: “The Commissioner shall ...\" from time to time pay to each State, in advance or otherwise, the amount which the local educational agencies of that State are eligible to receive under this part. Such payments shall take into account the extent (if any) to which any previous payment to such State educational agency under this title (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it.” Pub.L. No. 89-10, § 207(a)(1), 79 Stat. 27, 32 (1965). New Jersey argued that this provision authorized the federal government to withhold funds for services not yet rendered by the state agencies (prospective withholding), but not to withhold funds for services already provided by the state (retroactive withholding). Furthermore, New Jersey contended that the effect of prospective withholding was to reduce the extent of the services the state was obliged to provide during the period for which the withheld funds would otherwise have been provided. The Bell Court rejected" }, { "docid": "9540123", "title": "", "text": "n. 8. North Carolina seeks to distinguish § 602(b) from the provision of ESEA relied on in Bell to authorize repayment. The State’s argument is that only the withholding sanction, and not the adjustments in payments language, applies to recoupment of amounts expended in violation of the act. North Carolina contends that any other construction would render the last sentence of § 602(b) redundant or largely superfluous. The argument is refuted, however, by the fact that ESEA also provided for withholding funds from a State that failed to comply with the requirements of the program. Section 146, 20 U.S.C. § 241j. Moreover, in providing that the Secretary “may also withhold funds” the language of § 602(b) indicates that remedies other than withholding are available to the Department of Labor. North Carolina argues that, because the 1978 amendments expressly provided for right of repayment, there was no similar right under the 1973 Act, otherwise the later amendments would be redundant. The Bell Court was faced with the issue of later amendments to ESEA that clearly provided for the federal government’s right to demand repayment when states misused grant moneys. The Court concluded that the discussion of the 1978 amendments to ESEA, which were of persuasive value, revealed that Congress thought that recipients were already liable for misused funds. 103 S.Ct. at 2194. The comments made by members of Congress during the debates on the 1978 CETA amendments indicate that they assumed the existence of a right of recovery and approved of the Department of Labor’s pre-1978 practice of actually recouping funds. The Congressional intent in amending the CETA Act in this manner appears to have been to clarify a pre-existing right and not to provide Labor with new authority. The agency’s practice of ordering that funds be reimbursed prior to the 1978 amendments also supports Labor’s argument that a right of recovery existed under the 1973 Act. As observed by the court in Atlantic County, recoupment under CETA’s predecessors amounted to “more than the Tong held’ view of an agency which the Bell court found persuasive.” 715 F.2d at 836 (citation" }, { "docid": "3587765", "title": "", "text": "(9th Cir.1983), we think it is abundantly clear that the Secretary has such authority. The Third Circuit in Atlantic County, New Jersey v. U.S. Department of Labor, 715 F.2d 834 (3d Cir.1983) (per curiam), recently held that the 1973 CETA statute, as well as the 1978 enactments, authorizes recovery for misspent funds. The court interpreted Section 602(b) of the 1973 CETA statute, 29 U.S.C. § 982(b), which authorizes the Secretary of Labor to make “necessary adjustments in payments on account of overpayments or underpayments,” to create a right to recover misspent funds, not merely a right of setoff against future grants. In so doing, the Third Circuit expressly followed the approach of the Supreme Court in Bell v. New Jersey & Pennsylvania, — U.S. —, 103 S.Ct. 2187, 76 L.Ed.2d 313 (1983), which held that similar language in the Elementary and Secondary Education Act permits the government to recoup funds misspent under the ESEA. The Third Circuit examined the legislative history of the 1973 CETA statute in detail to confirm that Congress was presumptively aware of the Secretary’s view that the pre-1973 manpower programs had created implied recoupment rights. The court concluded that the failure of Congress to indicate disapproval of the Secretary’s practice of recoupment demonstrated congressional ratification of the implied recoupment right in the 1973 Act. We believe that the reasoning of the Third Circuit is compelling. This conclusion is also consistent with earlier decisions of this circuit in which we have recognized a common law right of the government to recover improperly spent federal funds. E.g., Collins v. Donovan, 661 F.2d 705 (8th Cir.1981)." }, { "docid": "4218728", "title": "", "text": "103 S.Ct. at 2194-95. Finally, she relied for “persuasive value” on the support of later Congresses, placing particular emphasis on statements from the legislative history of the 1978 amendments to ESEA that reflected the understanding that authority to order repayment already existed. Id. at 785, 789-90, 103 S.Ct. at 2194, 2196-97. In response to the State’s argument that this interpretation of the earlier provisions of ESEA rendered the 1978 amendment redundant, Justice O’Con-nor explained that the 1978 amendments were intended to clarify the Secretary’s authority by “specifying the procedures to be followed in the determination of the amount of the debt and in the collection of the debt.” Id. at 788-89,103 S.Ct. at 2195-96. Relying on Bell, the Third Circuit in Atlantic County v. United States Dep’t of Labor, 715 F.2d 834, 836 (3 Cir.1983) (per curiam), and the Fourth Circuit in North Carolina Comm’n of Indian Affairs v. United States Dep’t of Labor, 725 F.2d 238, 240-41 (4 Cir.), cert. denied, — U.S. -, 105 S.Ct. 112, 83 L.Ed.2d 55 (1984), concluded that the Secretary had authority to order direct repayment of misspent funds under the 1973 CETA. These decisions were followed in Texarkana Metropolitan Area Manpower Consortium v. Donovan, 721 F.2d 1162, 1164 (8 Cir.1983) (per curiam); California Tribal Chair man’s Ass’n v. United States Dep’t of Labor, 730 F.2d 1289, 1291 (9 Cir.1984); Mobile Consortium of CETA Alabama v. United States Dep’t of Labor, 745 F.2d 1416, 1418 (11 Cir.1984). None of these cases dealt with an argument, which also has not been made by the Tribe here, that could have been made on the basis of footnote 4 of the Bell opinion, which we quote in the margin, that Bell addressed only the question whether the Government had a right under ESEA to recover misspent funds and not the available remedies. Cf. Maryland Dep’t of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1453-1462 (D.C.Cir.1985) (finding that Bell does not include remedies available in context of misspent federal grants under title XX of the Social Security Act). However, any possible doubt on" }, { "docid": "9540117", "title": "", "text": "CHAPMAN, Circuit Judge: The principal issue in this appeal by the North Carolina Commission of Indian Affairs (Commission) and the North Carolina Department of Natural Resources and Community Development (Department) (collectively, North Carolina or the State) is whether the Secretary of Labor may order repayment of $135,611.77 in misspent funds under the Comprehensive Employment and Training Act of 1973, Pub.L. 93-203, 87 Stat. 839, 29 U.S.C. § 801 et seq. (1973) (1973 CETA Act). North Carolina claims that, prior to. amendments enacted in 1978, the Secretary of Labor’s sole remedy when funds were improperly expended was to withhold future grant moneys. In reliance on the Supreme Court’s decision in Bell v. New Jersey and Pennsylvania, — U.S. —, 103 S.Ct. 2187, 76 L.Ed.2d 313 (1983), which held that the Secretary of Education was entitled to order recoupment of misspent grant funds under the Elementary and Secondary Education Act of 1965 (ESEA), Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 2701 et seq. (1976 ed. Supp. V) and in accord with the decision of the Court of Appeals for the Third Circuit in Atlantic County New Jersey v. United States Department of Labor, 715 F.2d 834 (3rd Cir.1983), we hold that the authority to require repayment of improper expenditures existed under the 1973 CETA Act. Finding also that there was substantial evidence to support the Secretary of Labor’s conclusion that the funds were improperly expended or inadequately monitored and that North Carolina was responsible for insuring that the grant was properly administered, we affirm the Secretary’s repayment order. I The two North Carolina governmental agencies, as “prime sponsors” under the 1973 CETA Act, received grant funds from the Department of Labor and contracted with subgrantees for expenditure of the funds. Grantees and subgrantees receive CETA funds prior to expenditure instead of being reimbursed by the Department of Labor after moneys are expended. Since the grants were awarded prior to 1978, the provisions of the 1973 Act control. Following an audit and a grants officer’s determination that certain funds had been misused, the Administrative Law Judge (ALJ) issued orders instructing" }, { "docid": "4218731", "title": "", "text": "Labor had “been auditing grantees, disallowing costs and recovering misspent funds over a considerable period of time.” 715 F.2d at 836 (citing cases); see also North Carolina Comm’n of Indian Affairs, supra, 725 F.2d at 242 (“Although the earlier laws provided no express right of recoupment, the Secretary of Labor routinely audited grantees, disallowed costs and recovered misspent funds”). The provisions of the 1973 CETA on which the Secretary bases his authority to order repayment were lifted directly from these earlier statutes. See, e.g., Economic Opportunity Act of 1964, § 602(n), 78 Stat. 530 (allowing administrator to make “necessary adjustments on account of over-payments or underpayments”); Emergency Employment Act of 1971, § 12(e), 85 Stat. 154 (identical to 1973 CETA § 602(b)). It is well established that “where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978); see also 2A Singer, Sutherland’s Statutory Construction § 49.09 (Sands 4th ed. 1984). Moreover, there is nothing to suggest, as the Tribe argues, that the few remedies expressly provided in the 1973 Act were intended to be the sole and exclusive remedies available to the Secretary to secure compliance with the requirements of CETA. These remedies, which are contained in provisions describing the Secretary’s powers in approving plans and disbursing funds, are limited to withholding or adjusting future payments, §§ 108(b)(2), 602(b), 87 Stat. 847, 878, and terminating the prime sponsor’s plan, id. § 108(d), 87 Stat. 847-48. That Congress was concerned that the Secretary should insure that prime sponsors comply with the conditions under which they obtain CETA grants is evidenced by § 105(b), 87 Stat. 844, which requires prime sponsors to certify that their plans meet the Act’s requirements, and by § 613, 87 Stat. 882, which authorizes the Secretary to audit sponsors “[i]n order to assure that funds provided under this Act are used in" }, { "docid": "4218730", "title": "", "text": "that score was dispelled when the Supreme Court, again speaking through Justice O’Connor, approved a repayment order by the Department of Education for misspending ESEA funds provided in 1974. Bennett v. Kentucky Dep’t of Education, — U.S. -, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985). Even without Bell and Bennett, the history and administrative background of the 1973 Act require the conclusion that the Secretary had authority under the 1973 CETA to order repayment of misspent funds by prime sponsors. CETA replaced the Manpower Development and Training Act, Pub.L. No. 87-415, 76 Stat. 23 (1962), the Economic Opportunity Act of 1964, Pub.L. No. 88-452, 78 Stat. 508 (1964), and the Emergency Employment Act of 1971, Pub.L. No. 92-45, 85 Stat. 146 (1971). See 1973 CETA, § 3, 87 Stat. 839. Like the 1973 CETA, these earlier acts contained no provisions expressly authorizing orders for repayment of misused funds and provided only for adjustment or withholding of payments. However, as noted by the Third Circuit in Atlantic County, supra, in administering these programs, the Secretary of Labor had “been auditing grantees, disallowing costs and recovering misspent funds over a considerable period of time.” 715 F.2d at 836 (citing cases); see also North Carolina Comm’n of Indian Affairs, supra, 725 F.2d at 242 (“Although the earlier laws provided no express right of recoupment, the Secretary of Labor routinely audited grantees, disallowed costs and recovered misspent funds”). The provisions of the 1973 CETA on which the Secretary bases his authority to order repayment were lifted directly from these earlier statutes. See, e.g., Economic Opportunity Act of 1964, § 602(n), 78 Stat. 530 (allowing administrator to make “necessary adjustments on account of over-payments or underpayments”); Emergency Employment Act of 1971, § 12(e), 85 Stat. 154 (identical to 1973 CETA § 602(b)). It is well established that “where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 581, 98" }, { "docid": "4218726", "title": "", "text": "§§ 2701-3386 (as amended). ESEA created a program to improve educational opportunities for disadvantaged children that is similar to CETA in many respects: local educational agencies obtain grants from state agencies, which, in turn, obtain grants from the Department of Education upon providing assurances that the local agencies will spend the funds only on qualifying programs. As originally enacted, ESEA, like CETA, did not expressly provide for the repayment of misspent funds, but did provide that in disbursing payments under the Act the Secretary should take into account the extent (if any) to which any previous payment to such State educational agency under this title (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it. § 207(a)(1), 79 Stat. 32 (quoted in Bell, supra, 461 U.S. at 782). Congress amended ESEA in 1978, as it amended CETA, and made explicit the Secretary’s authority to recover funds misused by a recipient. See Education Amendments of 1978, Pub.L. No. 95-561, § 185(b), 92 Stat. 2143, 2190 (codified at 20 U.S.C. § 2835(b)). The States challenged the Secretary’s authority to recover funds misspent between 1967 and 1973, arguing, like appellant here, that no authority to demand repayment existed prior to 1978 and that the 1978 amendments operated prospectively only. The Court, in an opinion by Justice O’Connor, readily ruled in favor of the Government. She found that “[t]he plain language of the statute recognizes the [Government’s] right” to recover misspent funds because no other plausible reading would explain the meaning of the statutory command to “take into account the extent (if any) to which any previous payment” was too large. Id. at 783 & n. 8, 103 S.Ct. at 2193 & n. 8. She examined the legislative history and concluded that it “supports this natural reading.” Id. at 783-84 & n. 9, 103 S.Ct. at 2193-94 & n. 9. Justice O’Con-nor also placed reliance on the fact that “[t]he Department [of Education] has long held our view of the statute, for it often sought repayment of misused funds.” Id. at 786-87," }, { "docid": "9540121", "title": "", "text": "Carolina. First, the Secretary argues that the 1973 Act includes a right of recovery. The Secretary also contends that the 1978 Act, which Congress amended to provide expressly for recovery of misused funds, may be applied retroactively to reach funds administered under the earlier act. Labor’s third argument is that there is a common law right of recovery. Following the lead of Bell, we find that a right of recovery exists under the 1973 Act, and therefore we need not reach the issues of whether recovery is also authorized by retroactive application of the 1978 amendments or by the common law. In Bell the Court found that the argument that ESEA contained a recoupment right was supported by the language, the legislative history and the administrative interpretation of the statute. We are persuaded that the language, the evidence of legislative intent, the administrative inter pretation and the overall rationale of the 1978 CETA Act are sufficiently similar to that of ESEA to mandate a finding that the Department of Labor may order repayment of misapplied moneys. Section 602(b) of the 1973 CETA Act provided in part: The Secretary may make ... necessary adjustments in payments on account of overpayments or underpayments. The Secretary may also withhold funds otherwise payable under this chapter, but only in order to recover any amounts expended in the current or immediately prior fiscal year in violation of any provision of this chapter. North Carolina contends that the withholding provision gives the only available remedy in the event of noncompliance by a grantee. In Bell, however, the Court found that in a similar provision of ESEA, the “plain language of the statute” recognized the right of the federal government to overpaid funds. 103 S.Ct. at 2193. The Bell court also found that to adopt the State’s view of set-off as the only remedy would allow the State to escape liability for misuse of the moneys while penalizing those who were intended to benefit from the programs by reducing the amount of funds that the beneficiaries would actually receive. 103 S.Ct. at 2192 n. 5 and 2193" } ]

[ { "docid": "2026847", "title": "", "text": "the firm “deliver[ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Asahi, 107 S.Ct. at 1087 (Brennan, J., concurring in part and in the judgment) (quoting Woodson, 444 U.S. at 297-98, 100 S.Ct. at 567). Their appearance in California was not because “a consumer ... took them there,” Asahi, 107 S.Ct. at 1037 (quoting Woodson, 444 U.S. at 306-07, 100 S.Ct. at 584); nor was that appearance “one isolated occurrence.” Asahi, 107 S.Ct. at 1036 (quoting Woodson, 444 U.S. at 295, 100 S.Ct. at 566). A fifth justice added that he “would be inclined to conclude that a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute ‘purposeful availment’ [of the benefits of the forum state] even though the item delivered to the forum State was a standard product marketed throughout the world.” Asahi, 107 S.Ct. at 1038 (Stevens, J. concurring in part and concurring in the judgment). The opinion of the remaining four justices indicates that, once the factor of the meetings between Schmid and Diaz is taken into account, all nine justices would find the assertion of jurisdiction constitutional. These four justices state that: The “substantial connection,” ... between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. Asahi, 107 S.Ct. at 1033 (plurality opinion) (emphasis in original) (citations omitted). Although they say that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State,” they immediately go on to say that: Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed" } ]

[ { "docid": "9702438", "title": "", "text": "Justice Brennan, joined by three justices, would have found personal jurisdiction under a stream-of-commerce theory “[a]s long as a participant ... is aware that the final product is being marketed in the forum state.” 480 U.S. at 116-17, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in the judgment). In other words, when a manufacturer places its product into the stream of commerce, it should expect to be brought into court wherever its products land in the regular course of business. In contrast, Justice O’Connor, also joined by three members of the Court, posited the “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at 112, 107 S.Ct. 1026 (plurality opinion). Rather, she would have required some “[a]dditional conduct of the defendant [indicating] an intent or purpose to serve the market in the forum State.” Id. Simple awareness is not enough. Id. Finally, Justice Stevens, joined by two justices, found “the volume, the value, and the hazardous character” of the product affects the “purposeful availment” determination. Id. at 122, 107 S.Ct. 1026 (Stevens, J., concurring in part and concurring in the judgment). Since Asahi issued in 1987, “courts have sought to reconcile the competing opinions.” Nicastro, 131 S.Ct. at 2789 (plurality opinion). We take no position here on which As-ahi theory should prevail Rather, we rely on Justice Breyer’s concurrence in Nicas-tro that certain facts, without more, are insufficient for personal jurisdiction. 131 S.Ct. at 2792; see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.”); King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc) (“[0]ne opinion can be meaningfully regarded as ‘narrower’ than another ... only when one opinion is a logical subset of other, broader opinions.”). Specifically, six justices" }, { "docid": "23235032", "title": "", "text": "quoting International Shoe, 326 U.S. at 310, 66 S.Ct. at 154. In Asahi, a majority of the Court concluded that the “fair play and substantial justice” prong of International Shoe was not satisfied. The Court divided three ways on the minimum contacts issue, with no opinion receiving a majority of votes. Justice O’Connor, joined by three other justices, sets forth the most restrictive test of whether a non-resident party has sufficient contacts with a forum to justify that forum’s assertion of jurisdiction. Her opinion concludes that merely placing a product into the stream of commerce, even with an “awareness that the stream of commerce may or will sweep the product into the forum State ...”, is not enough to establish jurisdiction. Asahi, 107 S.Ct. at 1033. Justice O’Connor suggests four examples of additional conduct which might indicate the requisite intent or purpose to serve the market in the forum state: (1) designing the product for the market in the forum state; (2) advertising in the forum state; (3) establishing channels for providing regular advice to customers in the forum state; and (4) marketing the product through a distributor who has agreed to serve as a sales agent in the forum state. Id. Justice Stevens, in a separate concurrence joined by two other justices, concludes that the O’Connor plurality misapplied its announced test to the facts of the case. Justice Stevens suggests that it is difficult to draw the line between “mere awareness” that a component will find its way into the forum state and “purposeful availment” of the forum’s market. He suggests that to determine whether or not conduct rises to the level of purposeful availment requires a constitutional determination focusing on the volume, the value, and the hazardous character of the goods introduced into the stream of commerce. Id. at 1038. Justice Brennan, joined by three other justices, authored the third concurrence. His opinion concludes that placing a product into the stream of commerce is sufficient to constitute purposeful activity directed toward the forum state “[a]s long as the participant in this process is aware that the final product" }, { "docid": "22164310", "title": "", "text": "not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Id. Thus, because Asahi’s only “contact” with California was its awareness that Cheng Shin sold tires with Asahi valves to consumers in California, Asahi did not purposefully establish any contacts in California such that it should have reasonably anticipated being haled into court in that state. Another four Justices (Brennan, joined by White, Marshall, and Blackmun) stated in a concurring opinion that placing a product into the stream of commerce is a purposeful act directed at the forum state as long as the defendant is aware the product is being marketed in the forum state. Id. at 116-17, 107 S.Ct. at 1034-35. The ninth Justice (Stevens, joined by White and Blackmun) reasoned, in a concurring opinion, that placing a product into the stream of commerce may rise to the level of a purposeful availment depending on the volume, value and hazardous character of the product. Id. at 122, 107 S.Ct. at 1037; see also Benitez-Allende v. Alcan Aluminio Do Brasil, S.A., 857 F.2d 26, 29-30 (1st Cir.1988) (explaining the Asahi opinions). We are not persuaded that the opinions in Asahi have undermined Hughes. Our conclusion is bolstered by the fact that the Boits could not cite a single post-AsaAi case holding that by placing a product into the stream of commerce with knowledge that the product could end up in the forum state a defendant purposefully establishes minimum contacts in that state. Indeed, those circuits that have squarely addressed the stream-of-commerce issue since Asahi have adopted Justice O’Connor’s plurality view. See Madara v. Hall, 916 F.2d 1510, 1516-17 (11th Cir.1990); Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 375-76 (8th Cir.1990); cf. Keds Corp. v. Renee International Trading Corp., 888 F.2d 215, 220 (1st Cir.1989); Hugel v. McNeil, 886 F.2d 1, 4 (1st Cir.1989). The only “contact” the Boits even allege Gar-Tec had with Maine is GarTec’s alleged act of selling the hot air gun to Brookstone followed by Brookstone’s selling the gun through the mail" }, { "docid": "18861086", "title": "", "text": "recognized that the language of Worldr-Wide Volkswagen might be read to allow jurisdiction over any manufacturer which is aware that its product may be sold in the forum state. She noted, however, that some courts had rejected so broad an interpretation of World-Wide Volkswagen, reading it to require more of the defendant than mere knowledge of the product’s entry into the forum state through the stream of commerce. She sided with those courts: The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. 480 U.S. at 112, 107 S.Ct. at 1032 (O’Connor, J.). Thus, even though Asahi may have been aware that its products would be sold in California, its lack of conduct directed specifically at California made jurisdiction in California improper under a “minimum contacts” analysis. Justice Brennan, joined by Justices White, Marshall and Blackmun, concluded that World-Wide Volkswagen should not be read to require “additional conduct” beyond simply placing a product in the stream of commerce with the expectation that it will be purchased in the forum state. As Justice Brennan continued, “As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Id. at 117, 107 S.Ct. at 1034 (Brennan, J.). Justice Stevens, the swing vote, joined Justice O’Connor’s opinion except with" }, { "docid": "10229569", "title": "", "text": "product in the stream of commerce and is aware that its product may be sold in the forum state. Id. at 116-17, 107 S.Ct. at 1034-35 (Brennan, J., concurring in part and concurring in the judgment). Justice O’Connor, joined by Chief Justice Rehnquist and Justices Powell and Scalia, rejected this broad interpretation and concluded that merely placing a product into the stream of commerce with knowledge that it may be swept into a particular forum, without more, is insufficient to find purposeful availment under the minimum contacts test. Instead, these Justices interpreted World-Wide Volkswagen's language as requiring an additional showing of some affirmative act by the defendant purposefully directed at the forum state. Id. at 112, 107 S.Ct. at 1032 (O'Connor, J.). Justice Stevens, the swing vote, ultimately joined with Justice O’Connor’s opinion to the extent it decided the case on other grounds, but specifically disagreed with Justice O'Connor’s treatment of the minimum contacts issue. Since Asahi, the circuits have split over whether the \"stream of commerce” standard in WorldWide Volkswagen requires a plaintiff to establish jurisdiction in products liability cases by showing affirmative conduct by the defendant purposefully directed at the forum. See, e.g., Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945-46 (4th Cir.1994) (adopting Justice O’Connor’s position), cert. denied, 513 U.S. 1151, 115 S.Ct. 1103, 130 L.Ed.2d 1070 (1995); Boit v. Gar-Tec Products, Inc, 967 F.2d 671, 682-83 (1st Cir.1992) (same); Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 375 (8th Cir.1990) (same). Compare Dehmlow v. Austin Fireworks, 963 F.2d 941, 947 (7th Cir.1992) (adopting Justice Brennan’s position); Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383, 385-86 (5th Cir.1989) (same), cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989). . The court recognizes that Nevada case law is not binding on the court's due process determination. However, in a diversity action, the court may look to the law of the state in which it sits as persuasive authority. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1286 n. 3 (9th Cir.1977). This would be appropriate in this" }, { "docid": "23403609", "title": "", "text": "required by the plurality was unnecessary, insofar as “[t]he stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.” Id. at 117, 107 S.Ct. at 1034 (Brennan, J., concurring in part and concurring in the judgment). Justice Brennan maintained that: [A]s long as a participant in [this flow of products] is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State and indirectly benefits from the State’s laws that regulate and facilitate commercial activity. Id. at 117, 107 S.Ct. at 1034-35 (Brennan, J., concurring in part and concurring in the judgment). Finally, Justice Stevens, although concurring in the judgment, also declined to join the plurality’s holding regarding minimum contacts on the grounds that that discussion was unnecessary given the plurality’s decision regarding the “fair play and substantial justice” prong of the due process analysis. Justice Stevens noted, however, that an analysis of purposeful availment and minimum contacts should take into account “the volume, the value, and the hazardous character of the components,” id. at 122, 107 S.Ct. at 1037 (Stevens, J., concurring in part and concurring in the judgment), suggesting that “a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute ‘purposeful availment’ even though the item delivered to the forum State was a standard product marketed throughout the world.” Id. (Stevens, J., concurring in part and concurring in the judgment). As is evident from the foregoing discussion, the current state of the law regarding personal jurisdiction is unsettled. Because jurisdiction in the United States over RNUR in this case, however, is consistent with due process under the more stringent “stream of commerce plus” analysis adopted by the Asahi plurality," }, { "docid": "8439442", "title": "", "text": "and California’s were in Asahi because Wessinger is a Kansas resident. In a separate portion of her opinion, Justice O’Connor, joined by the Chief Justice and Justices Powell and Scalia, wrote that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at-, 107 S.Ct. at 1033, 94 L.Ed.2d at 104. Thus the California court’s assertion of personal jurisdiction over Asahi exceeded the limits of due process. Id. at-, 107 S.Ct. at 1033, 94 L.Ed.2d at 105. However, Justices Brennan, White, Marshall, and Blackmun disagreed with this portion of the opinion. Writing for the group, Justice Brennan stated: I cannot join the plurality’s determination that Asahi’s regular and extensive sales of component parts to a manufacturer it knew was making regular sales of the final product in California is insufficient to establish minimum contacts with California. Id. at-, 107 S.Ct. at 1037-38, 94 L.Ed.2d at 110 (Brennan, concurring in part). Justice Stevens, joined by Justices White and Blackmun, did not reach the issue of the validity of the stream of commerce theory, stating that it was unnecessary to the Court’s decision. Id. (Stevens, concurring in part). Thus the Asahi Court was evenly divided as to the validity of the theory. Given this, and noting that most courts and commentators support the theory, see id, at-, 107 S.Ct. at 1036, 94 L.Ed.2d at 108 (Brennan, concurring in part), we decline to depart from the Cunningham ruling that the theory validly confers jurisdiction. Honda R & D further asserts that Cunningham is not controlling here because Honda R & D, unlike Fuji, did not manufacture the motorcycle. We disagree and hold that we have personal jurisdiction because Honda R & D’s design was a product, the product was indirectly placed into the stream of commerce, and the product allegedly injured Wessinger. First, Honda R & D’s design may be likened to a component of the Honda motorcycle; in fact, it is a component which controls all other components. See Asahi, 480 U.S. at -, 107 S.Ct." }, { "docid": "22164311", "title": "", "text": "Benitez-Allende v. Alcan Aluminio Do Brasil, S.A., 857 F.2d 26, 29-30 (1st Cir.1988) (explaining the Asahi opinions). We are not persuaded that the opinions in Asahi have undermined Hughes. Our conclusion is bolstered by the fact that the Boits could not cite a single post-AsaAi case holding that by placing a product into the stream of commerce with knowledge that the product could end up in the forum state a defendant purposefully establishes minimum contacts in that state. Indeed, those circuits that have squarely addressed the stream-of-commerce issue since Asahi have adopted Justice O’Connor’s plurality view. See Madara v. Hall, 916 F.2d 1510, 1516-17 (11th Cir.1990); Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 375-76 (8th Cir.1990); cf. Keds Corp. v. Renee International Trading Corp., 888 F.2d 215, 220 (1st Cir.1989); Hugel v. McNeil, 886 F.2d 1, 4 (1st Cir.1989). The only “contact” the Boits even allege Gar-Tec had with Maine is GarTec’s alleged act of selling the hot air gun to Brookstone followed by Brookstone’s selling the gun through the mail to Babson in Maine. There is no evidence in the record that Gar-Tec intended to serve the market in Maine. For example, there is no evidence that Gar-Tec designed the product for Maine, advertised in Maine, established channels for providing regular advice to customers in Maine, or marketed the product through a distributor who had agreed to serve as a sales agent in Maine. See Asahi, 480 U.S. at 112, 107 S.Ct. at 1032. Accordingly, because “mere awareness” that a product may end up in the forum state does not constitute “purposeful availment,” the district court could not have constitutionally exercised personal jurisdiction over Gar-Tec. V. Conclusion The district court properly determined that the Boits failed to provide any information of evidentiary quality to support their jurisdictional allegations that Gar-Tec sold the hot air gun to Brookstone and that Gar-Tec knew or should have known that Brookstone might sell the hot air gun to a customer in Maine. In addition, however, even if the Boits had proffered evidence to support these allegations, we conclude that" }, { "docid": "15253445", "title": "", "text": "“substantial connection” between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State.... But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Asahi, 480 U.S. at 112, 107 S.Ct. 1026 (citations omitted). Justice Brennan, joined by three other justices, disagreed with the O’Connor plurality. To those justices, mere foreseeability or awareness of the defendant that its product would wind up in the forum state is sufficient. Justice Brennan explained: As long as a participant in [the stream-of-commerce] process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.... A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Id. at 117, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in the judgment). The Supreme Court revisited the stream-of-commerce issue in McIntyre, 564 U.S. 873, 131 S.Ct. 2780 (2011), but the Court again did not announce a majority opinion on this issue. Justice Kennedy, writing for a plurality of four justices, emphasized that personal jurisdiction “depends on purposeful availment.” 564 U.S. at 885, 131 S.Ct. 2780; id. at 880, 131 S.Ct. 2780 (“As a general rule, the sovereign’s exercise of power requires some act by which the defendant ‘purposefully" }, { "docid": "22906225", "title": "", "text": "so we will perform a specific jurisdiction analysis. We do not decide today whether Corchran’s contacts with Texas are sufficiently “continuous and systematic” to support an exercise of general jurisdiction. The “minimum contacts” prong, for specific jurisdiction purposes, is satisfied by actions, or even just a single act, by which the non-resident defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” The non-resident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. The Supreme Court has stated that a defendant’s placing of its product into the stream of commerce with the knowledge that the product will be used in the forum state is enough to constitute minimum contacts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The Fifth Circuit is among the circuits that have interpreted World-Wide Volkswagen to hold that “mere foreseeability or awareness [is] a constitutionally sufficient basis for personal jurisdiction if the defendant’s product made its way into the forum state while still in the stream of commerce.” Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 111, 107 S.Ct. 1026, 1031, 94 L.Ed.2d 92 (1987) (citing Bean Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081 (5th Cir.1984).). In Asahi the Supreme Court’s most recent statement on personal jurisdiction, four justices favored a narrower interpretation of the stream of commerce doctrine. The plurality opinion by Justice O’Connor advocated a requirement of “additional conduct” by the defendant to support personal jurisdiction under the stream of commerce theory: “The ‘substantial connection’ between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum state_ [A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum state does" }, { "docid": "18861087", "title": "", "text": "may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. 480 U.S. at 112, 107 S.Ct. at 1032 (O’Connor, J.). Thus, even though Asahi may have been aware that its products would be sold in California, its lack of conduct directed specifically at California made jurisdiction in California improper under a “minimum contacts” analysis. Justice Brennan, joined by Justices White, Marshall and Blackmun, concluded that World-Wide Volkswagen should not be read to require “additional conduct” beyond simply placing a product in the stream of commerce with the expectation that it will be purchased in the forum state. As Justice Brennan continued, “As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Id. at 117, 107 S.Ct. at 1034 (Brennan, J.). Justice Stevens, the swing vote, joined Justice O’Connor’s opinion except with regard to the minimum contacts issue. He refused to join that aspect of the case because it was not necessary to the decision of the Court in view of its reliance on the second prong of International Shoe. In addition, “even assuming that the test ought to be formulated here,” Justice Stevens concluded that Justice O’Connor’s opinion “misapplies [the test] to the facts of this case.” Id. at 122, 107 S.Ct. at 1037 (Stevens, J.). He concluded that Asahi’s conduct did rise to the level of “purposeful availment” in the state of California because of the large number of Asahi’s units that ended up there. Id. Our reading of World-Wide Volkswagen and Asahi is that the Supreme Court has not abandoned the International Shoe two-pronged test as further articulated in Hanson and Burger King. The touchstone of the minimum contacts analysis remains that an out-of-state person have engaged in some activity purposefully directed toward the forum state. See Hanson, 357 U.S. at 253, 78 S.Ct. at 1239; Burger King, 471 U.S. at 475, 105 S.Ct." }, { "docid": "21570745", "title": "", "text": "with this interpretation of the “stream of commerce” theory. He believed that if there is a “regular and anticipated flow of products from manufacture to distribution to retail sale” and the defendant is aware that the final product is being marketed in the forum state, no additional conduct on the defendant’s part need be shown to establish minimum contacts. Id. at 117, 107 S.Ct. at 1034. Justice' Stevens, the ninth vote, wrote a short concurring opinion (joined by Justices White and Blackmun who had also j'oined Justice Brennan’s opinion). He rejected the plurality’s assumption that “an unwavering line can be drawn between ‘mere awareness’ that a component will find its way into the forum State and ‘purposeful availment’ of the forum’s market.” Id. at 122, 107 S.Ct. at 1037. He stated that whether or not Asahi’s conduct, which was arguably more than the placement of a product into the stream of commerce, rises to the level of purposeful availment “requires a constitutional determination that is affected by the volume, the value, and the hazardous character of the components.” Id. He concluded that in most cases a regular course of delivering over 100,000 units annually would constitute “purposeful availment.” Id. This court has not revisited the “stream of commerce” theory since the Supreme Court’s opinion in Asahi. Although the 4 — 4-1 vote of the Supreme Court makes it difficult to even attempt to promulgate the last word on the “stream of commerce” theory, certain guidelines have emerged. It is clear, for example, from Asahi and its precursors that there must have been some “purposeful availment” by the defendant of the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (minimum contacts must have a basis in “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State”). Even under Justice Brennan’s view, the mere knowledge or awareness that one’s products will end up in the forum state without some regularity of shipment would not be enough. The contact must be purposeful," }, { "docid": "23213961", "title": "", "text": "the Court held that to satisfy the minimum contacts prong of the due process inquiry, a manufacturer must do more than merely place a product into the “stream of commerce.” See id. at 112, 107 S.Ct. 1026. Instead, the plurality stated, a “finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.” Id. at 112, 107 S.Ct. 1026 (emphasis in original) (citing Burger King, 471 U.S. at 476, 105 S.Ct. 2174). The concurring members of the Court joined the plurality’s decision in Asahi only to the extent that it held that allowing jurisdiction on the facts of that case would not “comport with ‘fair play and substantial justice,’ ” id. at 116, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in the judgment) (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. 154), and would be “unreasonable and unfair,” id. at 121, 107 S.Ct. 1026 (Stevens, J., concurring in part and concurring in the judgment), thus making the “minimum contacts” inquiry unnecessary to a finding that the exercise of jurisdiction was unconstitutional. Justice Brennan’s concurring opinion, joined by three members of the Court, would have established a “stream of commerce” standard in products liability cases that allowed jurisdiction over any manufacturer which places its product in the “stream of commerce” and is aware that its product may be sold in the forum state. Id. at 116-17,107 S.Ct. 1026. We need not adopt either view of the “stream of commerce” standard, however; even assuming arguendo that we were to adopt the Asahi plurality’s more restrictive view, we would still conclude for the reasons already stated that the “exclusive sales rights” agreement constitutes the type of purposeful action sufficient to support a finding of minimum contacts. 2. Reasonableness Given our conclusions that Kurz-Hastings has demonstrated that Navitas had the minimum contacts necessary to justify specific jurisdiction and that Navitas “purposefully availed” itself of the privilege of doing business in New York, we now turn to whether the assertion of jurisdiction “comports with ‘traditional notions of fair play and substantial justice’— that" }, { "docid": "9702437", "title": "", "text": "fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The “defendant’s conduct and connection with the forum State” must be “such that [it] should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). For example, when a “corporation purposefully avails itself of the privilege of conducting activities within the forum State, it has clear notice ... it is subject to suit there.” Id. (internal citation and quotation marks omitted). Personal jurisdiction can also be premised on a defendant’s participation in the “stream of commerce,” which “refers to the movement of goods from manufacturers through distributors to consumers.” Nicastro, 131 S.Ct. at 2788 (plurality opinion). However, “beyond that descriptive purpose its meaning is far from exact.” Id. The Court’s seminal stream-of-commerce case Asahi Metal Industry, for example, resulted in three competing interpretations, none of which garnered a majority. See 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92. In Asahi, Justice Brennan, joined by three justices, would have found personal jurisdiction under a stream-of-commerce theory “[a]s long as a participant ... is aware that the final product is being marketed in the forum state.” 480 U.S. at 116-17, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in the judgment). In other words, when a manufacturer places its product into the stream of commerce, it should expect to be brought into court wherever its products land in the regular course of business. In contrast, Justice O’Connor, also joined by three members of the Court, posited the “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at 112, 107 S.Ct. 1026 (plurality opinion). Rather, she would have required some “[a]dditional conduct of the defendant [indicating] an intent or purpose to serve the market in the forum State.” Id. Simple awareness is not enough. Id. Finally, Justice Stevens, joined by two justices, found “the volume, the value, and the hazardous" }, { "docid": "22162125", "title": "", "text": "the facts of the case before them, jurisdiction did not lie in California; and apparently all of the Justices agreed that the stream of commerce theory provides a valid basis for finding requisite minimum contacts. The split was over the exact requirements for an application of the theory. Four Justices were of the view that an exercise of personal jurisdiction requires more than the mere act of placing a product in the stream of commerce. As Justice O’Connor expressed it, there must be in addition “an action of the defendant purposefully directed toward the forum State.” Asahi, 480 U.S. at 112, 107 S.Ct. at 1032. (Emphasis in original) But four of the Justices considered the showing of ‘additional conduct’ unneeded: “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.... A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity.” Id. at 117, 107 S.Ct. at 1034-35 (Brennan, White, Marshall, & Blackmun, JJ., concurring in part and concurring in the judgment). Justice Brennan, writing for these Justices, considered this view to be the prevalent view among most courts and commentators. Id. at 117-18 & n. 1, 107 S.Ct. at 1034-35 & n. 1 (Brennan, J., concurring in part and concurring in the judgment). We need not join this debate here, since we find that, under either version of the stream of commerce theory, plaintiff made the required jurisdictional showing. When viewed in the light of the allegations and the uncontroverted assertions in the affidavits, plaintiff has stated all of the necessary ingredients for an exercise of jurisdiction consonant with due process: defendants, acting in consort, placed the accused fan in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there. We" }, { "docid": "7660704", "title": "", "text": "S.Ct. 1026, 94 L.Ed.2d 92 (1987). In Asahi, the Court’s members disagreed whether a defendant could be subject to personal jurisdiction in a forum merely because the defendant had placed a product in the stream of commerce. Justice Brennan, writing for four Justices, evaluated personal jurisdiction under the stream-of-commerce theory by relying on considerations of foreseeability. Justice Brennan wrote that “jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Asahi, 480 U.S. at 117, 107 S.Ct. 1026 (opinion concurring in part and concurring in the judgment). Justice O’Connor and three other Justices rejected Justice Brennan’s approach. In their view, mere foreseeability or awareness that “the stream of commerce may or will sweep the product into the forum State” is insufficient. Id. at 112, 107 S.Ct. 1026. Justice O’Connor wrote: The substantial connection between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Id. (citing Burger King, 471 U.S. at 476, 105 S.Ct. 2174; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)) (internal quotation marks omitted). Because neither Justice Brennan’s nor Justice O’Connor’s test garnered a majority of the votes in Asahi, neither test prevailed as the applicable precedent. The Court declined to resolve the Asahi split in McIntyre. In a plurality opinion, Justice Kennedy acknowledged the imprecision of the metaphor “stream of commerce,” stating that “[i]t refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact.” McIntyre, 131 S.Ct. at 2788. The plurality sided with Justice O’Connor’s approach in Asahi, concluding" }, { "docid": "21570744", "title": "", "text": "privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,’ ” id. at 111, 107 S.Ct. at 1031 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985)). Justice O’Connor provided the following examples of the type of “additional conduct” needed to establish purposeful availment and, therefore, minimum contacts: “designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Asahi 480 U.S. at 112, 107 S.Ct. at 1032. Justice O’Connor concluded: [A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Id. Justice Brennan, writing for four Justices in a concurring opinion, disagreed with this interpretation of the “stream of commerce” theory. He believed that if there is a “regular and anticipated flow of products from manufacture to distribution to retail sale” and the defendant is aware that the final product is being marketed in the forum state, no additional conduct on the defendant’s part need be shown to establish minimum contacts. Id. at 117, 107 S.Ct. at 1034. Justice' Stevens, the ninth vote, wrote a short concurring opinion (joined by Justices White and Blackmun who had also j'oined Justice Brennan’s opinion). He rejected the plurality’s assumption that “an unwavering line can be drawn between ‘mere awareness’ that a component will find its way into the forum State and ‘purposeful availment’ of the forum’s market.” Id. at 122, 107 S.Ct. at 1037. He stated that whether or not Asahi’s conduct, which was arguably more than the placement of a product into the stream of commerce, rises to the level of purposeful availment “requires a constitutional determination that is affected by the volume, the value, and the hazardous character" }, { "docid": "10229568", "title": "", "text": "arguments contained therein, that the motion is incorrectly captioned and is intended to challenge only personal jurisdiction over the defendant. . It is worth noting that the Supreme Court subsequently attempted to clarify the scope of the \"stream of commerce” language and its relationship to the \"purposeful availment\" prong of the minimum contacts test. See Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). However, no majority in Asahi was able to conclusively establish an interpretation of what constituted \"minimum contacts” in product liability cases. Instead, Asahi was decided on the grounds that subjecting the foreign defendant to jurisdiction in California would violate the \"traditional notions of fair play and substantial justice” prong of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Justice Brennan, joined by Justices White, Marshall and Blackmun, concluded that the \"stream of commerce” standard in products liability cases should be read as allowing jurisdiction over any manufacturer or retailer which places its product in the stream of commerce and is aware that its product may be sold in the forum state. Id. at 116-17, 107 S.Ct. at 1034-35 (Brennan, J., concurring in part and concurring in the judgment). Justice O’Connor, joined by Chief Justice Rehnquist and Justices Powell and Scalia, rejected this broad interpretation and concluded that merely placing a product into the stream of commerce with knowledge that it may be swept into a particular forum, without more, is insufficient to find purposeful availment under the minimum contacts test. Instead, these Justices interpreted World-Wide Volkswagen's language as requiring an additional showing of some affirmative act by the defendant purposefully directed at the forum state. Id. at 112, 107 S.Ct. at 1032 (O'Connor, J.). Justice Stevens, the swing vote, ultimately joined with Justice O’Connor’s opinion to the extent it decided the case on other grounds, but specifically disagreed with Justice O'Connor’s treatment of the minimum contacts issue. Since Asahi, the circuits have split over whether the \"stream of commerce” standard in WorldWide Volkswagen requires a plaintiff to" }, { "docid": "22164309", "title": "", "text": "California Supreme Court holding that California had jurisdiction over Cheng Shin’s claim against Asahi, a tire valve manufacturer, whose only contact with California was selling tire valves to Cheng Shin in Taiwan followed by Cheng Shin’s inserting some of the Asahi valves into tires sold in California. In contrast with the isolated sales shown in Hughes and in the case now before us, however, the sales alleged in Asahi were numerous and continuing. Justice O’Connor, delivering the judgment of the unanimous Court, held that California’s exercise of jurisdiction over Cheng Shin’s claim against Asahi was beyond the limits of due process. In Part IIA of the Opinion, speaking for a plurality of four (Chief Justice Rehnquist, Powell, O’Connor, and Scalia) Justice O’Connor added that the “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at 112, 107 S.Ct. at 1032. [A] defendant’s awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Id. Thus, because Asahi’s only “contact” with California was its awareness that Cheng Shin sold tires with Asahi valves to consumers in California, Asahi did not purposefully establish any contacts in California such that it should have reasonably anticipated being haled into court in that state. Another four Justices (Brennan, joined by White, Marshall, and Blackmun) stated in a concurring opinion that placing a product into the stream of commerce is a purposeful act directed at the forum state as long as the defendant is aware the product is being marketed in the forum state. Id. at 116-17, 107 S.Ct. at 1034-35. The ninth Justice (Stevens, joined by White and Blackmun) reasoned, in a concurring opinion, that placing a product into the stream of commerce may rise to the level of a purposeful availment depending on the volume, value and hazardous character of the product. Id. at 122, 107 S.Ct. at 1037; see also" }, { "docid": "16203234", "title": "", "text": "J., concurring in part and concurring in the judgment). Justice Brennan maintained that: [A]s long as a participant in [this flow of products] is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State and indirectly benefits from the State’s laws that regulate and facilitate commercial activity. Id. at 117, 107 S.Ct. 1034-35 (Brennan, J., concurring in part and concurring in the judgment). Finally, Justice Stevens, although concurring in the judgment, also declined to join the plurality’s holding regarding minimum contacts on the grounds that that discussion was unnecessary given the plurality’s decision regarding the “fair play and substantial justice” prong of the due process analysis. Justice Stevens noted, however, that an analysis of purposeful availment and minimum contacts should take into account “the volume, the value, and the hazardous character of the components,” id. at 122, 107 S.Ct. at 1037 (Stevens, J., concurring in part and concurring in the judgment), suggesting that “a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute ‘purposeful availment’ even though the item delivered to the forum State was a standard product marketed throughout the world.” Id. (Stevens, J., concurring in part and concurring in the judgment). As is evident from the foregoing discussion, the current state of the law regarding personal jurisdiction is unsettled. Because, however, Georgia’s exercise of jurisdiction over RNUR in this case is consistent with due process under the more stringent “stream of commerce plus” analysis adopted by the Asahi plurality, we need not determine which standard actually con trols this case. Before considering the “stream of commerce plus” analysis in the context of this case, we must address certain issues raised by the appellees that, in our opinion, are irrelevant to our jurisdictional inquiry. First," } ]

[ { "docid": "22620397", "title": "", "text": "citation omitted). Abdulai submits that this language clearly establishes that the BIA may not hold that an applicant has failed to meet his or her burden of proof simply because he or she has failed to produce corroborating evidence. Because we assume (for the sake of argument) that Abdulai’s testimony was credible, see supra note 6, the sentence upon which he must be relying is the second one: “The law allows one seeking refugee status to prove his persecution claim with his own testimony if it is credible.” The problem for Abdulai, however, is that this statement was dicta. The issue before us in Senathirajah simply had nothing to do with corroboration. That case involved an asylum applicant from Sri Lanka. See id. at 211. An IJ originally denied the application on several grounds. Importantly, the IJ found that the applicant’s story had not been credible and also concluded that he had failed to meet his burden of proof because he had not corroborated his story. See id. at 213-14. The applicant then appealed to the BIA, which “conducted an independent examination of the record, and also concluded that Senathirajah was not credible.” Id. at 216. The BIA gave three reasons for concluding that the applicant lacked credibility — none of which involved his failure to provide corroboration. See id. at 216-17. Because we review only the BIA’s decision, see supra page 548-49, there was simply no issue of corroboration before us in Senathirajah. This is confirmed by the fact that, other than the sentence from which Abdulai and amicus seek to extract so much meaning, our analysis in Senathi-rajah contained no discussion of the corroboration issue. Though we agree that Senathirajah suggests that it may be a bad idea to expect asylum applicants to provide corroborating evidence, that issue simply was not before us. In sum, we have no warrant for concluding that the BIA’s rule is per se invalid. The Board’s rule is not foreclosed by the INA or the governing regulations, it is consistent with international standards, and it is not in conflict with our cases. We" } ]

[ { "docid": "19676297", "title": "", "text": "of proof unless the IJ finds the testimony not credible without it. Capric, 355 F.3d at 1085-86 & n. 4 (discussing in which situations corroboration is required to meet petitioner’s burden of proof); see also 8 C.F.R. § 208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”) (emphasis added). In this case, the IJ found Musollari not credible, resting this determination on a number of factors, only some of which (as we will explain) are supported by the record. First, the IJ viewed Musollari’s claim that he was interrogated and threatened after serving as an election observer with skepticism, saying such claims were extremely common amongst applicants from Albania. Relatedly, the IJ disbelieved Musollari’s claim that the Socialist Party asked him in November 2000 to manipulate an election that had occurred the month before. The IJ also thought Musollari’s arrests in 1997 and 1998 were not significant enough to warrant detailed consideration, Next, the IJ noted that Musollari’s testimony about the Socialist Party seizing control of the government in 1997 through force and violence was “diametrically opposed” by information in country reports and other sources of historical data establishing that the Democratic government collapsed that year because of scandal and chaos associated with the failure of large “pyramid schemes.” The IJ also faulted Musollari’s failure to produce corroboration for his two arrests and the claimed ransacking of his home by the police. Finally, the IJ noted that Mu-sollari conceded he lied to American officials about his purpose for coming to the United States in order to obtain a visa. As we have noted, our review of the record reveals a number of mistakes in the IJ’s reasoning. Musollari testified that he was an election observer in October of 2000 and was detained and threatened by police in November of 2000 based on this political activity. The IJ found this implausible based in part on his personal experience with Albanian asylum seekers — 90% of whom, the IJ said, claim to have been Albanian election observers. The IJ was entitled, based" }, { "docid": "22603876", "title": "", "text": "defer to the IJ’s ambiguous adverse credibility determination because it was based on concerns as to inconsistencies in the evidence and questions as to whether the petitioner had provided false information. Mansour, 390 F.3d at 671. Similarly, in Kataria v. INS, 232 F.3d 1107, 1111-13 (9th Cir.2000), the IJ did not make an explicit adverse credibility determination, but expressed concerns about mistakes in Kataria’s application and inconsistencies in the evidence concerning his religion and where he lived, which he failed to address by submitting supporting evidence. In the case at bar, the IJ was not concerned so much with inconsistencies in Tijani’s actual testimony or mistakes in his application but with the facts that: (1) on numerous prior occasions, Tijani had been judicially determined to have lied and had been criminally convicted for his lies; and (2) Tijani testified that he had not converted to Christianity until 1994 although in 1989, a prior IJ had granted Tijani adjustment of status based on his representation that he had converted to Christianity in 1987. This irrefutable “background” information suggests that no fact-finder should be compelled to accept Tijani’s unsupported testimony as true. C. The IJ properly denied Tijani relief because he failed to proffer any corroborative evidence I do not read our precedent as prohibiting the IJ in this case, where substantial evidence undermined the petitioner’s credibility, from requiring that Tijani provide supporting evidence of his claim of religious persecution. Our rule is that “the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.” Kataria, 232 F.3d at 1113. This rule, however, turns on a determination that an applicant’s testimony is credible. We explained in Chebchoub: “Because asylum cases are inherently difficult to prove, an applicant may establish his case through his own testimony alone.” ... That is, Chebchoub’s testimony, if credible, may be sufficient to sustain his burden of proof without corroboration.... However, 8 C.F.R. § 208.13 plainly indicates that if the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure" }, { "docid": "22045006", "title": "", "text": "“use of false documents in his fleeing from Iraq is not a proper reason for denying asylum.” Ordinarily one shows the same documents, typically a passport and perhaps a visa, to get on the plane to get out of a country, and to get through immigration to get into the destination country, so we have extended the Pula doctrine to the documents used to get into the United States, in Akinmade v. INS (use of false documents to enter the United States in certain circumstances is “wholly consistent with [an applicant’s] claim to be fleeing persecution.” ). Similarly, we held in Turcios v. INS that falsely claiming to be from Mexico instead of El Salvador did not impugn credibility where the alien had reason to fear persecution if deported to El Salvador rather than Mexico. And (before the REAL ID Act establishing the contrary) we held in Kaur v. Ashcroft that where the IJ finds the asylum seeker to be otherwise credible, the petitioner’s testimony cannot be held insufficient to bear the burden of proof because of lack of credible corroborating evidence, where the corroborating evidence was not readily available because it would have to come from persons living outside the United States. We have not held, and could not reasonably hold, that an asylum applicant’s past lies may never support an adverse credibility determination. The asylum seeker bears the burden of proving that he has a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” If the proof he offers depends on his testimony, as it usually does, and substantial evidence justifies rejection of the truth of the testimony, then an adverse credibility decision is supported. While the special circumstances of needing to lie one’s way out of a persecuting country and perhaps use fraudulent documents to get out of that country and into another may weaken or vitiate the adverse inference that might otherwise be drawn from past lies in other circumstances, lies and fraudulent documents when they are no longer necessary for the immediate escape from persecution" }, { "docid": "22044993", "title": "", "text": "and threatening that if the family did not tell them, “they would take us into captivity and commit atrocities against us.” The following summer, the family moved to Canada. They remain in touch with their extended family and former neighbors in India. At Singh’s merits hearing, government counsel introduced the fraudulent documents for their bearing on Singh’s credibility. Singh conceded that he had perjured himself previously, before the asylum officer, but asked that the IJ listen with an open mind to his testimony since he conceded previously testifying falsely. The IJ did so, rejecting the government’s suggestion the past falsehoods alone made a hearing unnecessary. Since the only arrest, torture, and beating claimed was of Singh’s father rather than Singh, the IJ asked where the father was. Singh’s attorney said that the father was in the United States, but that the father’s mental health had deteriorated since his wife’s death and he would not be a competent witness. The IJ asked if there was medical evidence to support the claim of incompetence. Singh’s counsel conceded that there was none. Counsel added, “[Ejvery time I speak to him and you mention his wife, he breaks down because of the events they went through.” Government counsel suggested that Singh needed corroboration, particularly since Singh had previously lied and the only harm claimed was to the father. Since the father also had an asylum application pending, government counsel asked for a written waiver of confidentiality for the father’s asylum file so that if he did testify, the father could be effectively cross examined. The asylum regulations limit disclosure of information in an asylum application “without the written consent of the applicant.” The IJ advised Singh’s lawyer that Singh had the burden of proof, and it would be “much heavier in a situation like this where there is — he has completely changed his story and particularly where he admits to having lied under oath at the asylum office.” Because of this, the father’s testimony might be crucial corroboration. If he was not going to testify because of incompetence, there should be something more" }, { "docid": "22044999", "title": "", "text": "might not bolster Singh’s credibility, since it might offer some other reason to believe him or might simply tend to show that they together lied about being persecuted in India when they were actually safe in Canada. Singh then changed his position on resting his case, and asked for a continuance to perform the necessary tasks so that the father could testify. The IJ denied the request. The IJ decided that Singh had not borne his burden of proof. She found that Singh had submitted a false application for asylum, along with false documents, and then had sworn to “an entirely different story.” She noted that at the first of the two hearings, she had told Singh’s attorney that he should either have the father available to testify after she had continued the hearing for three and a half weeks, with an executed waiver of confidentiality, or have something verifying his lack of competence, but Singh’s attorney did neither. Although the father was present at the continued hearing, he had not been medically evaluated, his lawyer was not present, and had not executed a written waiver of confidentiality. Singh’s asylum application with the false story had been entirely in Singh’s handwriting. He had testified to the false story at his asylum office interviews, one with Gill present and one without. The court was troubled not only by Singh’s admitted perjury and false documents but also by the absence of corroboration for the new story. The father’s testimony had not been introduced, and Singh’s sisters, who lived with him and who were “obviously material witnesses,” did not testify. The IJ therefore reasoned that Singh had not “been a credible witness in that he has perjured himself in the past and has failed to present anything other than his own testimony when other forms of evidence could have been available to him.” The BIA summarily affirmed the IJ, and Singh appealed. ANALYSIS Singh argues that the IJ’s adverse credibility finding was not supported by substantial evidence in the record, and that he was denied due process of law by the denial of" }, { "docid": "23347110", "title": "", "text": "We are left to guess exactly what else the IJ felt was necessary. Although the government suggested at oral argument that affidavits from her family members could have supported Lin’s case, we are hard pressed to believe that these affidavits would have convinced the IJ that Lin’s testimony was credible. The IJ’s demand for additional corroboration in this case ignores the substantial evidence already in the record, both general and specific to Lin’s case. Accordingly, we remand for reconsideration of whether Lin’s claim that she was forced to abort two pregnancies constitutes past persecution as contemplated by the amended definition of “refugee.” See In re Y-T-L-, 23 I. & N. Dec. 601, 606 (B.I.A. 2003) (en banc) (“It is manifestly clear that Congress intended to make eligible for asylum those who were victims of China’s coercive family planning policy, not simply those who could be victims if returned to China.”). Based on his adverse credibility determination, the IJ failed to reach a number of other issues raised by Lin’s application. The IJ did not determine whether Lin’s three involuntary IUD insertions and mandatory checkups could constitute persecution as a “coercive population control program” under the amended statutory definition or whether Lin’s efforts to have the IUDs removed by private doctors is the type of “resistance” that Congress sought to protect, see Li v. Ashcroft, 356 F.3d 1153, 1160 (9th Cir.2004) (en banc) (finding that vocal and physical resistance to a forced pregnancy examination meets the statutory definition). We recognize in advance that it may be difficult for Lin to obtain corroboration of these illegal acts. See, e.g., Xiao-rong Li, License to Coerce: Violence Against Women, State Responsibility, and Legal Failures in China’s Family-Planning Program, 8 Yale J.L. & Fem. 145, 171-72 (1996) (explaining that the removal of IUDs from women of childbearing age without the permission of family planning authorities is punishable as a crime). The IJ also failed to determine whether Lin’s fear of involuntarily sterilization if she is returned to China constitutes a well-founded fear of future persecution. If Lin succeeds in establishing that she has been persecuted" }, { "docid": "22434403", "title": "", "text": "issued so long after the births, and he faulted Li for not producing contemporaneous evidence of the births. The IJ questioned the credibility of the x-ray report, too, because it contained the same photograph that appeared in Li’s wife’s notarial birth certificate, and because it stated her age as 37, while judging from her birth certificate, she was 36 at the time. Second, the IJ pointed to Li’s failure to provide additional corroborating materials, in particular with respect to his wife’s sterilization. Li lacked first-hand knowledge of his wife’s sterilization, as he had already fled China when it occurred, but he failed to provide, for instance, an affidavit from his wife “concerning the alleged events, as to the enforcement of the family planning policy.” Third, the IJ addressed Li’s testimonial credibility. He noted one specific inconsistency in Li’s testimony: his conflicting account of how he how he had located and retained the services of Dr. Lau, who examined the x-rays of Li’s wife and wrote the report stating that she underwent tubal ligation. The IJ suggested that the related testimony was “fabricated.” More generally, the IJ found Li’s demeanor to be hesitant and noted that Li would continue searching with his eyes when confronted with inconsistencies and conflicting statements concerning his claim for relief. [Li] had taken two or three water breaks during his testimony, which did not appear to be an attempt to quench the thirst, but appeared to [have] been used as an opportunity to formulate a response when confronted with a conflicting inconsistency. Moreover, each time that [Li] was confronted with an inconsistency or conflict, he became defensive with regard to his testimony. Summarizing, the IJ labeled Li incredible and inconsistent, and held that Li failed to establish past persecution or a reasonable possibility of future persecution. Accordingly, Li’s requests for asylum and withholding of removal were denied. II. DISCUSSION A. Legal Protections Afforded to Persecuted Aliens Asylum and withholding of removal under the INA are related, but distinct, forms of relief available to persecuted aliens. To establish eligibility for asylum, an alien must demonstrate that he" }, { "docid": "22434401", "title": "", "text": "‘is the result of photographing a duplicate of the photograph in [the 1989 certificate].’ He explained that “PRC marriage certificates are produced in duplicate; one is issued to the female and the other is issued to the female [sic].” Based on a comparison of the images, Eaton further concluded that the 1989 certificate which Li submitted “is the male’s copy; the photograph in [the 1998 certificate] is a copy of the female’s marriage certificate.” He explained that the photo in the 1989 certificate features “an embossed Chinese character from the seal,” and the 1998 certificate’s photo has a corresponding “photographed Chinese character,” but in a different position — meaning that it was copied from a different stamped copy of the same image. Eaton’s report also raised the possibility, based on an unexplained shadow, that the original photograph “may be a composite photograph; i.e., the photograph may have been composed of two separate photographs.” C. The IJ’s Oral Decision After a brief recitation of the facts, procedural posture, and relevant law, the IJ set forth his grounds for denying both Li’s petition for asylum and his petitions for withholding of removal. First, the IJ questioned the corroborating evidence that Li had presented. The IJ focused in particular on the marriage certificates, and the photographs they contained. He noted that the picture in the 1998 certificate was a photograph of the picture in the 1989 certificate. “Therefore,” the IJ continued, “it appears that the photograph, whether contained in [either certificate], appears to be a composite photograph.” In the IJ’s view, this finding reduced Li’s credibility dramatically. Li “asserts a statement with regard to his presence in the People’s Republic of China with a spouse when the photograph had been taken,” but this now “becomes questionable.” The faked picture undermines “a material element of his claim, that in fact he’s married, and that he has two children.” Moreover, because the notarial certifícate was not issued until 1998, little weight should be afforded to that document. The IJ also found the notarial birth certificates for Li’s children to be unreliable, largely because they were" }, { "docid": "22045007", "title": "", "text": "because of lack of credible corroborating evidence, where the corroborating evidence was not readily available because it would have to come from persons living outside the United States. We have not held, and could not reasonably hold, that an asylum applicant’s past lies may never support an adverse credibility determination. The asylum seeker bears the burden of proving that he has a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” If the proof he offers depends on his testimony, as it usually does, and substantial evidence justifies rejection of the truth of the testimony, then an adverse credibility decision is supported. While the special circumstances of needing to lie one’s way out of a persecuting country and perhaps use fraudulent documents to get out of that country and into another may weaken or vitiate the adverse inference that might otherwise be drawn from past lies in other circumstances, lies and fraudulent documents when they are no longer necessary for the immediate escape from persecution do support an adverse inference. In this case, that is what the IJ had. Singh continued to perjure himself and present fraudulent documents even when he was safely in the United States, away from his supposed persecutors in India. Moreover, he had fabricated the very basis of his asylum application. That sufficed to raise a legitimate doubt about his credibility. And he failed to produce any corroboration for his second story, even though he lived with his sisters in Hayward and there was no evident reason why he could not have brought one or both to his hearing. They could have testified about the police visits to the family home in India, if his allegations about those visits were true. Unlike the asylum seeker in Zi Lin Chen v. Ashcroft, Harminder Singh was given notice at the first merits hearing that a relative might be necessary to corroborate his story, and was granted a continuance of three and a half weeks to arrange for it. When the IJ has reason in the record to doubt" }, { "docid": "22434397", "title": "", "text": "CALABRESI, Circuit Judge: Li Zu Guan (“Petitioner” or “Li”) petitions this court for review of a June 19, 2002 order of the BIA summarily affirming the September 14,1998 denial, by an IJ, of Li’s requests for asylum and for withhold ing of removal. Li sought this relief on the grounds that he and his wife had been persecuted for violating the family planning policies of the People’s Republic of China (“China”) by having more than one child. The IJ found Li not to be credible, and for that reason denied relief. Before this court, Li asserts that the IJ’s findings were not supported by substantial evidence and alleges several specific errors. We agree with Li that the IJ’s credibility finding rested, in part, on errors. And because we cannot conclude with confidence that the BIA would reach the same result on remand in the absence of errors, we grant Li’s petition for review. I. Background A. Li’s Claims Li testified to the following facts at his removal hearing. Except where noted (in footnotes), Li’s in-court testimony is consistent with a statement that he submitted in 1997 to accompany his 1-589 asylum application (“the 1-589 statement”). Li testified that he had a wife, whom he married in 1982, and two children in China. In May 1985, about a month after the birth of his daughter and while Li was away from home working on a fishing boat, government officials seized Li’s wife and forced her to have an intrauterine device (“IUD”) inserted. In August 1986, Li and his wife secured the services of a private doctor, who removed the IUD. They proceeded to have a second child. Li claimed that the government officials did not know that Mrs. Li was expecting a second child because, early in her pregnancy, she went into hiding at her older sister’s home on Launchi Island in Fujian Province. A few weeks after giving birth to her son in 1987, Mrs. Li left the new baby with this older sister and returned to their home village of Guantou to live with Li and their daughter. Li’s" }, { "docid": "20238571", "title": "", "text": "to seek political asylum: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). Li and Chen do not claim to have suffered past persecution, but seek asylum based on their fear of future persecution. The “well-founded fear of persecution” standard set forth in § 1101(a)(42) has subjective and objective elements. The subjective component requires the alien to “present[] candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004) (internal quotation marks omitted). “The objective element requires a showing of specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution.” Id. at 187-88. Li and Chen’s asylum claim faltered on the objective component. Although the IJ found both Chen and Li to be credible witnesses, he concluded that they did not prove their fear of future persecution was an objectively reasonable possibility. III. Chen and Li contend that the IJ’s decision, as supplemented by the BIA’s order, lacked substantial evidence. In their view, the denial of asylum was unsupported by substantial evidence because the IJ and BIA relied almost exclusively on cherry-picked statements from the 2007 China Report and failed to consider compelling contradictory evidence suggesting that forced sterilizations are still a reality for Chinese nationals such as Chen and Li. Typically, we have approved of the BIA’s proclivity for finding State Department Country Reports to be the definitive word in asylum cases. After all, such reports are rightly considered to be “highly probative evidence in a well-founded fear case. Reliance upon these" }, { "docid": "20675722", "title": "", "text": "BIA dismissed Mr. Li’s appeal, noting many of the inconsistencies cited by the IJ in his decision, and finding the IJ’s adverse credibility determination was not clearly erroneous. The BIA found the IJ’s denial of asylum was correct, as Mr. Li failed to establish a credible claim based on his participation in an underground church. The BIA further found Mr. Li necessarily failed to satisfy the higher burden required for withholding of removal. It noted Mr. Li did not raise on appeal any substantive claims under the CAT, and concluded that application was not properly before it. The BIA further found no error in the IJ’s exercise of discretion when he denied Mr. Li’s application for voluntary departure. The BIA concluded that the IJ provided a hearing that was fundamentally fair, properly held that Mr. Li did not qualify for his requested forms of relief, and found Mr. Li raised no arguments on appeal which would cause it to reverse the IJ’s decision or to remand the matter for further proceedings. Mr. Li now petitions for review of the BIA order, arguing that the BIA’s adverse credibility determination was unsupported by substantial evidence and did not comport with due process, because the BIA did not provide specific, cogent reasons for its determination in light of precedent and the record as a whole. Mr. Li also argues the BIA failed to address all of his arguments on appeal. II. The Attorney General has discretion to grant asylum to a refugee; that is, an alien who is unwilling or unable to return to his country of origin due to persecution or a well-founded fear of future persecution on the basis of, among other things, religion. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.2005). The alien petitioning for asylum has the burden of proving past persecution or a well-founded fear of future persecution on one of the protected bases enumerated in 8 U.S.C. § 1158(b)(l)(B)(i). See Falaja, 418 F.3d at 894. A well-founded fear is one both “ ‘subjectively genuine and objectively reasonable.’ ” Id. (quoting Ghasemimehr v. INS, 7 F.3d 1389," }, { "docid": "10317008", "title": "", "text": "grant asylum to an alien who proves past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Falaja, 418 F.3d at 894; see 8 U.S.C. §§ 1101(a)(42), 1158(b)(1); 8 C.F.R. § 208.13. Ibrahim acknowledges that he suffered no past persecution. He argues, however, that he proved a well-founded fear of future persecution based on his membership in the Midgan clan. In particular, Ibrahim challenges the IJ’s reliance on Ibrahim’s previous falsified asylum applications for the negative credibility finding. Ibrahim claims the record compels a finding that he was just a youth guided to tell lies by adults he trusted. We find that the IJ’s negative credibility finding is supported by substantial evidence in the record. The IJ gave specific, cogent reasons for his negative credibility finding, relying on episodes of untruthfulness that occurred well after Ibrahim reached adulthood. The IJ noted that Ibrahim had a chance to “start fresh” with his 1998 United States asylum application but chose instead to present a fabricated story. According to Ibrahim’s own testimony and photocopied birth certificate, he was 23 years old at that time. In addition, the IJ found it “significant that even as late as November 2001, [Ibrahim] was still trying to use the Abdi-Basid Da-hir Brava identity for driver’s license purposes.” Ibrahim was 26 years old when that episode occurred. Ibrahim also contends that the IJ did not give sufficient weight to the testimony of Ibrahim’s two supporting witnesses. The IJ found that those witnesses testified credibly to knowing Ibrahim’s family in Somalia when Ibrahim was a child. However, the witnesses presented no evidence to support Ibrahim’s story of his family’s persecution and no evidence in general to suggest Ibrahim has a well-founded fear of future persecution in Somalia due to his membership in the Midgan clan. Giving all due weight to the testimony of the two supporting witnesses, the record as a whole does not compel a finding that Ibra-him has a well-founded fear of future persecution. We also find that the IJ’s alternative holding to" }, { "docid": "22093642", "title": "", "text": "a reviewing court owes an administrative agency.”). The heart of Raj Kumar’s asylum application is his claim that he suffered repeated beatings and sustained multiple injuries at the hands of Indian police. To support his contentions, Raj submitted, along with his asylum application, photographs allegedly depicting his injuries. He also presented these photographs as evidence in his hearing before the IJ. Further, after some prodding by the IJ, he presented his brother Rajinder — who had filed his own asylum application, with photographs — to corroborate his claim. It is undisputed that four of the five photographs Raj submitted were identical to the photographs Rajinder had submitted in his own asylum application. The IJ did not need to engage in “speculation or conjecture,” maj. at 1050, to see that the photos are the same; he needed only compare the two sets of photos in the record. And although we don’t know which brother’s photos were actually depictions of the other brother’s injuries — or whether either set of photos depicted neither brother at all — we do know that both sets of photos could not be what the Kumar brothers claimed them to be. The majority concedes that at least one of the photographs in Raj’s application “depicts an injury suffered by Rajinder.” Maj. at 1051. And it does not dispute that the injuries Raj claims to have suffered at the hands of the Indian police are the “heart” of his asylum application. This alone is substantial evidence supporting the Id’s findings. See Li, 378 F.3d at 962 (“An adverse credibility ruling will be upheld so long as identified inconsistencies go to the heart of the asylum claim.” (alteration and internal quotation marks omitted)). Cf. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003) (“Minor inconsistencies in the record that do not relate to the basis of an applicant’s alleged fear of persecution, go to the heart of the asylum claim, or reveal anything about an asylum applicant’s fear for his safety are insufficient to support an adverse credibility finding.”). Yet the majority concludes, inexplicably, that Raj did not" }, { "docid": "20675720", "title": "", "text": "dated July 1, 2010, charging Mr. Li with removability under 8 U.S.C. § 1227(a)(1)(B), Immigration and Nationality Act § 237(a)(1)(B). Mr. Li admitted the allegations in the Notice to Appear, and conceded removability. He renewed his application for asylum and related relief, and alternatively requested voluntary departure. On August 1, 2011, Mr. Li testified before United States Immigration Judge John O’Malley (IJ). During the hearing, several discrepancies emerged in Mr. Li’s testimony. The IJ denied relief, finding Mr. Li lacked credibility. In making this determination, the IJ noted several of the inconsistencies in Mr. Li’s testimony, and he found Mr. Li was unable to meet his burden to establish that he did not give false testimony to obtain a benefit under the Immigration and Nationality Act. The IJ alternatively found Mr. Li did not merit a favorable exercise of discretion in light of his adverse credibility determination. In addition to denying Mr. Li’s applications for asylum, withholding of removal under the Immigration and Nationality Act, withholding of removal under the Convention Against Torture (CAT), see 8 C.F.R. §§ 1208.16-.18, and for post-conclusion voluntary departure, the IJ ordered that Mr. Li be removed from the United States to China on the charges contained in his Notice to Appear. On March 28, 2012, the Board of Immigration Appeals (BIA) dismissed, as untimely, an appeal of the IJ’s decision, and returned the record to the Immigration Court without further action. However, the BIA subsequently granted Mr. Li’s motion to reconsider the March dismissal, and accepted his appeal on certification. In his appeal to the BIA, Mr. Li argued the IJ’s adverse credibility determination was not supported by the record and focused on immaterial and minor inconsistencies. Mr. Li claimed the IJ’s credibility determination required reversal, because the IJ erred as a matter of law and abused his discretion. Mr. Li further argued the IJ erred by evaluating his alleged lack of knowledge of Christianity in making the adverse determination. Mr. Li also asserted the IJ erred in denying him voluntary departure, claiming the IJ incorrectly shifted the burden of proof to him. The" }, { "docid": "22426760", "title": "", "text": "evidence, because the fraud called into question Petitioner’s truthfulness. See Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004) (holding that, when an applicant’s credibility is in question, the IJ’s or BIA’s adverse inference will withstand appellate review if the applicant failed to produce material, non-duplicative, available corroboration); Sidhu v. INS, 220 F.3d 1085, 1090-92 (9th Cir.2000) (same). This is not a case—like Akinmade v. INS, 196 F.3d 951 (9th Cir.1999), and Turcios, for example — in which the applicant lied out of fear of immediate danger or fear of future persecution, motivating the desire to gain entry into the United States. Petitioner says, instead, that he lied out of laziness. Additionally, Petitioner’s declaration stated that he was threatened in 1988-89, whereas he testified instead that the threats occurred in 1989-96. This huge discrepancy goes to the heart of his asylum claim because, among other things, it affects the reasonableness of his claimed fear of future persecution. Similarly, Petitioner testified that the NPA knew his name and knew him “particularly,” yet stated in his declaration that he simply was worried that the NPA might figure out his identity. This significant discrepancy, too, goes to the heart of the asylum claim. Although the IJ did not rely on those two discrepancies as reasons to disbelieve Petitioner, and thus we cannot rely on them directly to support denial of the petition, this credibility-undermining information is part of the record that supports the IJ’s insistence on receiving easily available, material, non-duplicative corroborative evidence. In my view, therefore, the IJ properly relied on the absence of such corroborating evidence to disbelieve Petitioner. I would affirm the adverse credibility finding on that ground. Alternatively, the finding that Petitioner would not be subject to future persecution is supported by substantial evidence. I agree with the majority that the record does not compel a finding of past persecution, p. 1118-19, so no presumption of future persecution operates in Petitioner’s favor. See Molina-Estrada v. INS, 293 F.3d 1089, 1094 (9th Cir.2002) (noting that a failure to establish past persecution does not trigger a presumption of future persecution). As" }, { "docid": "22773834", "title": "", "text": "hers and that her traveling companion was her husband. Neither of these statements was true. In addition, after the passport fraud was discovered, Uanreroro told the immigration inspector (under oath) that she lived in London for six months where she met the woman whose passport she now carried. In her asylum proceedings before the IJ, however, Uanreroro admitted that she had never even been to London. According to the IJ, this reason was sufficient by itself to destroy the credibility of her subsequent asylum claims. The IJ rejected the explanation that she lied out of fear of being returned to Nigeria or fear of her traveling companion who threatened to kill her if she implicated him in the scheme. The IJ concluded, “[I]t’s clear that [Uanreroro] is not a reliable witness, even when she is under oath. Her testimony cannot be considered by itself to be sufficient to meet her burden of proof.” IJ Dec. at 5-6. Thus, given the IJ’s prior rejection of her corroborating evidence, this adverse credibility determination formed a conclusive basis for denying Uanreroro’s claims. When making a credibility determination, the IJ is required to consider “the totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). Here, by contrast, the IJ found this reason dispositive. Thus, the IJ disregarded Uanreroro’s allegations of a well-founded fear of FGM based solely on statements she made before filing for asylum and without regard to any of the information that pertained to her substantive claims. It is readily apparent that lying to gain entry to the United States may be entirely consistent with fleeing persecution. Indeed, competing views exist on the relevance of such statements. The Ninth Circuit has held, as a matter of law, where an alien’s claims are based upon fear of persecution, lies told in order to gain admission to the United States cannot serve as a basis for an adverse credibility finding. Akinmade v. INS, 196 F.3d 951, 955 (9th Cir.1999). We decline to adopt the Ninth Circuit’s per se rule, however, as such lies could be consistent with any number" }, { "docid": "3873691", "title": "", "text": "determinations and the burden of proof in asylum cases. The issues in this case do not call for application of the different standards under the Act. In particular, the provisions dealing with the burden of proof in asylum cases are not applicable to this case as Singh’s petition was filed prior to the effective date of the amendments. Petitioner argues that neither of the IJ’s conclusions (denial of asylum and denial of adjustment of status due to inadmissibility) is supported by substantial evidence. He also makes a denial of due process claim as to the conduct of the IJ in both the San Francisco and Boston hearings which we dismiss as frivolous. Application for Asylum The burden of proof for establishing eligibility for asylum lies with the petitioner. See Diab v. Ashcroft, 397 F.3d 35, 39 (1st Cir.2005); 8 C.F.R. § 1208.13(a). Applicants can meet this burden by proving past 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); 8 C.F.R. § 1208.13(b)(1). An applicant’s testimony alone, “if credible, may be sufficient to sustain the burden of proof without corroboration,” 8 C.F.R. § 1208.13(a), but if the applicant is found not to be entirely credible, corroborating evidence “may be used to bolster an applicant’s credibility.” Diab, 397 F.3d at 39. The San Francisco IJ determined that Singh had not met his burden of proof based largely on her finding that his testimony was not credible and that the corroborating documentary evidence he offered to support his testimony conflicted with and tended to discredit his testimony further, rather than rehabilitate it. The petitioner disagrees and argues that the IJ’s credibility finding was not supported by substantial evidence and that he has satisfied his burden of proof to qualify for asylum relief under 8 U.S.C. § 1158(b)(1). We review factual findings and credibility determinations made by an IJ under the deferential substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Akinwande v. Ashcroft, 380 F.3d 517," }, { "docid": "20675732", "title": "", "text": "hand, grabbed my hair and beat me several times.” Mr. Li also testified the police encouraged other inmates to beat him, but he failed to apprise Officer Kuriakose of this detail during his asylum interview. When questioned about the discrepancies between his reports and testimony, Mr. Li often responded he did not clearly remember, or recall exactly, what he had said earlier. In light of the numerous discrepancies, Mr. Li’s evasiveness and non-responsive explanations, and Mr. Li’s unpersuasive attempts to reconcile his inconsistent statements, the IJ found Mr. Li not credible. He further found none of Mr. Li’s corroborative evidence, including the statement provided by Mr. Li’s brother, was sufficiently detailed, relevant, or persuasive enough to rectify Mr. Li’s testimony or otherwise establish he met the definition of a refugee. The adverse credibility determination was supported by substantial evidence in the record. We uphold the adverse credibility determination, as a reasonable adjudicator would not be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B). We further find the BIA’s decision that Mr. Li is not eligible for asylum is supported by substantial evidence. Because we hold Mr. Li failed to demonstrate he was eligible for asylum, we also hold he failed to meet the higher burden of proof required for obtaining withholding of removal. See Falaja, 418 F.3d at 897. Furthermore, any claim Mr. Li would have sought under the CAT has been waived, because he has not raised this issue on appeal. We further conclude any such claim would fail, as it would rest on his discredited testimony. See Ali, 686 F.3d at 538-39; Falaja, 418 F.3d at 897. Finally, we find no error in the IJ’s exercise of discretion when he denied Mr. Li’s application for voluntary departure. III. Because we uphold the agency’s adverse credibility finding, Mr. Li cannot prevail on his challenges to the decisions of the IJ and BIA. His asylum and withholding claims likewise fail, as they rest on his discredited testimony. Accordingly, we deny the petition for review. . A \"home” or \"underground” church is a church not sanctioned by the Chinese" }, { "docid": "22434402", "title": "", "text": "grounds for denying both Li’s petition for asylum and his petitions for withholding of removal. First, the IJ questioned the corroborating evidence that Li had presented. The IJ focused in particular on the marriage certificates, and the photographs they contained. He noted that the picture in the 1998 certificate was a photograph of the picture in the 1989 certificate. “Therefore,” the IJ continued, “it appears that the photograph, whether contained in [either certificate], appears to be a composite photograph.” In the IJ’s view, this finding reduced Li’s credibility dramatically. Li “asserts a statement with regard to his presence in the People’s Republic of China with a spouse when the photograph had been taken,” but this now “becomes questionable.” The faked picture undermines “a material element of his claim, that in fact he’s married, and that he has two children.” Moreover, because the notarial certifícate was not issued until 1998, little weight should be afforded to that document. The IJ also found the notarial birth certificates for Li’s children to be unreliable, largely because they were issued so long after the births, and he faulted Li for not producing contemporaneous evidence of the births. The IJ questioned the credibility of the x-ray report, too, because it contained the same photograph that appeared in Li’s wife’s notarial birth certificate, and because it stated her age as 37, while judging from her birth certificate, she was 36 at the time. Second, the IJ pointed to Li’s failure to provide additional corroborating materials, in particular with respect to his wife’s sterilization. Li lacked first-hand knowledge of his wife’s sterilization, as he had already fled China when it occurred, but he failed to provide, for instance, an affidavit from his wife “concerning the alleged events, as to the enforcement of the family planning policy.” Third, the IJ addressed Li’s testimonial credibility. He noted one specific inconsistency in Li’s testimony: his conflicting account of how he how he had located and retained the services of Dr. Lau, who examined the x-rays of Li’s wife and wrote the report stating that she underwent tubal ligation. The IJ" } ]

[ { "docid": "7001963", "title": "", "text": "that contract provisions typically do not apply retroactively “in the absence of an express term.” See Housing Authority of Norwalk v. Ross, No. 9206-A2880, 1993 WL 394294, at *4 (Conn.Super.Ct. July 19, 1993). The majority finds the district court’s conclusion flawed, arguing that the agreement covered the period before the stated dates of the contract’s effectiveness, so retroactive application was not required. But any flaw that may be present is in the agreement itself, according to which Terminix specifically provided that only claims arising under the Protection Plan would be submitted to arbitration. In addition, the breadth of the arbitration clause is irrelevant in this case, because it does not alter the fact that the parties’ agreement to arbitrate became effective only after the claims arose. The presumption of arbitrability that accompanies broad arbitration clauses thus does not apply here. Finally, the majority’s alternative holding that the claims are covered by the arbitration clause because they “relate to” the agreement is not supported by the law of this Circuit. This Court has not previously held that parties must arbitrate claims that arise before an agreement to arbitrate has gone into effect. Indeed, this conclusion is at odds with federal law, which does not require parties to arbitrate when they have not agreed to do so. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 478, 109 S.Ct. 1248, 108 L.Ed.2d 488 (1989); Collins & Aikman Products Co. v. Building Systems, Inc., 58 F.3d 16, 19-20 (2d Cir.1995). The plaintiffs only agreed to arbitrate claims arising out of or relating to services provided under the Protection Plan. I cannot see how a claim that arose as a result of services previously rendered arises out of or relates to claims which might arise as a result of future services. None of the cases cited by the majority involved a situation where, as here, the agreement to arbitrate was not yet in effect at the time the claims arose. Collins, upon which the majority principally relies, involved wrongful termination of two 1977 contracts that contained" } ]

[ { "docid": "17224149", "title": "", "text": "130 S.Ct. 2847, 2857-58, 177 L.Ed.2d 567 (2010). “[A] court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.” Id. at 2856. “When deciding whether the parties agreed to arbitrate a certain matter ... courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). We conduct our analysis with the federal policy in favor of arbitration in mind, such that, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). “At a minimum, this policy requires that ‘ambiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration.’ ” PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir.2010) (alteration in original) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). This presumption in favor of arbitration applies unless the party opposing arbitration rebuts it. Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 379 (1st Cir. 2011); Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 25 (1st Cir.2000) (“It is true that, generally speaking, the presumption in favor of arbitration applies to the resolution of scope questions.”). To determine whether Grand’s claims fall within the scope of the arbitration clause, “we focus on the factual allegations underlying [the] claims in the Mom-plaint.” Dialysis Access Ctr., LLC, 638 F.3d at 378. Grand alleged that Verizon’s “false and deliberate misrepresentation to Grand Wireless customers that Grand Wireless had ceased to do business” harmed Grand. Grand made factual allegations regarding Verizon’s termination of its relationship with Grand. The complaint described the customer mailing and Grand’s belief that Verizon and Ms. McCa-hill knew that the mailing contained false information yet authorized its distribution" }, { "docid": "4603126", "title": "", "text": "Audio Corp., 401 F.3d 529, 532 (3d Cir.2005)); China Minmetals, 334 F.3d at 281. This determination applies equally in domestic and international arbitration contexts. China Minmetals, 334 F.3d at 282 (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 152-56 (3d Cir.2001)). For a court to compel arbitration, it initially must And that there is a valid agreement to arbitrate because the basis for contractual arbitration is consent, not coercion. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 1216, 131 L.Ed.2d 76 (1995). Furthermore, the parties might agree to the resolution of some but less than all of their disputes arising out of a particular contract or relationship through arbitration, see Volt Info. Scis., 489 U.S. at 479, 109 S.Ct. at 1256, and thus even if a court finds that the parties have agreed to arbitrate some disputes it must find, to order arbitration, that the parties have agreed to arbitrate the dispute in issue. Because an arbitrator’s authority derives solely from the parties’ agreement to submit their dis putes to arbitration, AT & T Technologies, Inc. v. Comm’ns Workers, 475 U.S. 643, 648-49, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), a party cannot be compelled to submit a dispute to arbitration unless it has agreed to do so. U.S. Small Bus. Admin. v. Chimicles, 447 F.3d 207, 209 (3d Cir.2006); China Minmetals, 334 F.3d at 289-90. To determine whether the parties have agreed to arbitrate, we apply “ordinary state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944, 115 S.Ct. at 1924; Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 2527 n. 9, 96 L.Ed.2d 426 (1987); see Deutz AG, 270 F.3d at 154-55 (explaining that principles of First Options apply in international as well as domestic arbitration context). These principles must govern contracts generally; a state-law principle that takes its meaning from the fact that an agreement to arbitrate is at issue does not comport with section 2 of the FAA and therefore is preempted. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681," }, { "docid": "23261745", "title": "", "text": "1074-77. . Id. at 1073 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). . See Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (11th Cir.1992) (refusing to compel arbitration where one party had not signed the agreement containing the arbitration clause); I.S. Joseph Co. v. Mich. Sugar Co., 803 F.2d 396 (8th Cir.1986) (holding that question of whether the assignee of party to an agreement including arbitration clause could compel arbitration was for the courts). . See Opals on Ice Lingerie v. Body Lines Inc., 320 F.3d 362 (2d Cir.2003) (refusing to order arbitration where signature on agreement was not genuine). . Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d 587 (7th Cir.2001) (refusing to compel arbitration where party contended that agent who signed the agreement lacked the authority to bind the party); Sandvik AB v. Advent Int'l Corp., 220 F.3d 99 (3d Cir.2000) (same); Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136 (9th Cir.1991) (same); see also Snowden v. Checkpoint Cashing, 290 F.3d 631, 637 (4th Cir.2002) (citing favorably decisions from other circuits refusing to compel arbitration where a party contends that it never assented to the contract containing the arbitration provision). . EEOC v. Waffle House, Inc., 534 U.S. 279, 293-94, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (citing Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (internal quotation marks omitted)). . Waffle House, Inc., 534 U.S. at 294, 122 S.Ct. 754. . Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (emphasis added). . 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). . Id. at 940-41, 115 S.Ct. 1920. . Id. at 942, 115 S.Ct. 1920. . Id. at 944, 115 S.Ct. 1920 (internal quotation marks and brackets omitted). . Id. at 944, 115 S.Ct. 1920. . 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987). . Id. at 492, 107 S.Ct." }, { "docid": "22135375", "title": "", "text": "the dispute in question, “courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, — U.S. -,-, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); see also Perry v. Thomas, 482 U.S. 483, 492-93 n. 9, 107 S.Ct. 2520, 2526-28 n. 9, 96 L.Ed.2d 426 (1987). In applying state law, however, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself must be resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989). The second step is to determine “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. at 3355; see also Folse, 56 F.3d at 605; R.M. Perez & Assocs., 960 F.2d at 538. The Webbs’ first argument relates to the application of state law to determine whether the parties agreed to arbitrate Investacorp’s claim. Specifically, the Webbs urge that Texas law, rather than Florida law, governs the arbitrability of their dispute with Inves-tacorp. We need not resolve this question, however, because even assuming arguendo that Texas law governs the arbitrability question here, we find that the Webbs’ contentions on that issue are without merit. Cf. Phillips v. Goodyear Tire & Rubber Co., 651 F.2d 1051, 1054 (5th Cir. Unit A 1981) (declining to decide choice-of-law issue where appellee urged application of Texas law, but argued that he would prevail under either Texas or Georgia law, and court concluded that appellee’s arguments failed under the laws of both fora). The Webbs’ contentions with respect to the substantive question of whether they agreed to arbitrate Investacorp’s claim against them all relate to the validity of the agreements to arbitrate. First, the Webbs cite Tex.Bus. & Com.Code Ann. § 2.207 (the U.C.C.’s “battle of the forms” provision) as prohibiting a party from adding non-negotiated, material terms to writings that merely formalize an earlier oral agreement" }, { "docid": "2645057", "title": "", "text": "2527, 96 L.Ed.2d 426 (1987) (emphasis in original). See also Volt Information Sciences v. Leland Stanford, Jr. University, 489 U.S. 468, 475, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989) (same). Plaintiff at one point did contend that state law applied, for an understandable reason: New York law arguably imposes a heavier burden on a party seeking to compel arbitration than does its federal counterpart. Compare Schubtex, Inc., v. Allen Snyder, Inc., 49 N.Y.2d 1, 399 N.E.2d 1154, 424 N.Y.S.2d 133 (1979) (retention without objection by buyer of seller’s printed forms containing arbitration clause insufficient basis to compel buyer to arbitrate) and Matter of Marlene Industries Corp., 45 N.Y.2d 327, 333, 380 N.E.2d 239, 242, 408 N.Y.S.2d 410, 413 (1978) (parties “will not be held to have chosen arbitration as the forum for the resolution of their disputes in the absence of an express, unequivocal agreement to that effect”) with Pervel Industries, Inc. v. TM Wallcovering Inc., 675 F.Supp. 867, 869-70 (S.D.N.Y.1987) (agreement to arbitrate may be inferred from parties’ cqurse of dealing), aff'd, 871 F.2d 7 (2d Cir.198'9). There is, however, some authority in this Circuit that federal law applies to contract formation issues when the existence of an agreement to arbitrate is in issue. David L. Threlkeld & Co., Inc., v. Metallgesellschaft Ltd., 923 F.2d 245, 249 (2d Cir.) (applying federal law of contracts to dispute regarding existence of agree ment to arbitrate), cert. dismissed, — U.S. —, 112 S.Ct. 17, 115 L.Ed.2d 1094 (1991); Genesco, supra, at 845 (“Hence whether Genesco is bound by the arbitration clause of the sales confirmation forms is determined under federal law, which comprises generally accepted principles of contract law”) (footnote omitted); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960) (same); In re Midland Bright Drawn Steel Ltd., 1989 WL 125788, 1989 U.S. Dist. Lexis 12368 (S.D.N.Y.1989) (applying federal law to contract formation issue in case governed by Arbitration Convention). See also Matter of Ferrara, S.p.A., 441 F.Supp. 778, 780-81 (S.D.N.Y.1977), aff'd without opinion, 580 F.2d 1044 (2d Cir.1978). Cf. Fahnestock & Co., Inc. v. Waltman, 935 F.2d 512, 517-19" }, { "docid": "2645056", "title": "", "text": "Corp. v. Mikroverk, Ltd., 704 F.Supp. 30, 33 (E.D.N.Y.1989) (“While federal law governs the issue of the scope of the arbitration clause, state law governs the issue of whether or not the clause is part of the contract”); Cook Chocolate Co. v. Salomon, Inc., 684 F.Supp. 1177, 1182 (S.D.N.Y.1988) (“At the same time, however, § 2 of the Act preserves general principles of state contract law as rules of decision on whether the parties have entered into an agreement to arbitrate”); Duplan Corp. v. W.B. Davis Hosiery Mills, Inc., 442 F.Supp. 86, 87-88 (S.D.N.Y.1977) (Congress in passing Arbitration Act did not intend “to create a federal law of contract formation”). Indeed, the Supreme Court has recently indicated that this analysis is correct, at least with respect to cases controlled by chapter 1 of the Arbitration Act: “Thus, state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally”. Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 2527, 96 L.Ed.2d 426 (1987) (emphasis in original). See also Volt Information Sciences v. Leland Stanford, Jr. University, 489 U.S. 468, 475, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989) (same). Plaintiff at one point did contend that state law applied, for an understandable reason: New York law arguably imposes a heavier burden on a party seeking to compel arbitration than does its federal counterpart. Compare Schubtex, Inc., v. Allen Snyder, Inc., 49 N.Y.2d 1, 399 N.E.2d 1154, 424 N.Y.S.2d 133 (1979) (retention without objection by buyer of seller’s printed forms containing arbitration clause insufficient basis to compel buyer to arbitrate) and Matter of Marlene Industries Corp., 45 N.Y.2d 327, 333, 380 N.E.2d 239, 242, 408 N.Y.S.2d 410, 413 (1978) (parties “will not be held to have chosen arbitration as the forum for the resolution of their disputes in the absence of an express, unequivocal agreement to that effect”) with Pervel Industries, Inc. v. TM Wallcovering Inc., 675 F.Supp. 867, 869-70 (S.D.N.Y.1987) (agreement to arbitrate may be inferred from parties’ cqurse of dealing), aff'd, 871" }, { "docid": "6440533", "title": "", "text": "clause as one of the rights acquired by assignment, see In re Lipman (Haeuser Shellac Co.), 289 N.Y. 76, 81, 43 N.E.2d 817 (1942); Tanbro Fabrics Corp. v. Deering Milliken, Inc., 35 A.D.2d 469, 471, 318 N.Y.S.2d 764, 766 (1st Dept. aff'd), 29 N.Y.2d 690, 325 N.Y.S.2d 419 (1971), and may likewise be forced to arbitrate, see Blum’s Inc. v. Ferro Union Corp., 36 A.D.2d 584, 318 N.Y.S.2d 414, 415 (1st Dept.), aff'd, 29 N.Y.2d 689, 325 N.Y.S.2d 418 (1971) (“An assignee who has taken over the rights of an assign- or is bound to an arbitration clause in the assigned contract.”). At least one lower court has squarely held that a lender who takes an assignment of accounts receivable as security for a loan is required to follow the remedial procedure specified in the assigned contract. Cutting Room Appliances Corp. v. National Bronx Bank, 97 N.Y.S.2d 363 (Sup.Ct.Bronx Cty.1950). Paribas attempts to avoid this rule by arguing that Amoco had notice of the assignment and therefore cannot assert any defense. To the extent this argument is based on the claim that Amoco may not assert defenses or claims arising after it received notification of the assignment it states a correct principle. The U.C.C. expressly permits the account debtor to assert, in addition to defenses and claims arising from the contract assigned, “any other defense or claim of the account debt- or against the assignor which accrues before the account debtor receives notification of the assignment.” U.C.C. § 9-318(l)(b). In the present situation, a dispute about any such claim would properly be the subject of arbitration, but only if it arose prior to Amoco’s receipt of notice of the assignment. This result ensues not only from the important interests served by ordinary contract law, but from federal principles as well. By giving notice under Section 9-318(l)(b), the assignee also makes clear its refusal to become a party to the underlying agreement between the assignor and the debtor, insofar as that agreement provides a remedial mechanism (arbitration) to enforce rights and duties no longer enforceable in any forum. Amoco has never" }, { "docid": "1009686", "title": "", "text": "informed that “use of the service alone constituted an acceptance of these terms.” James v. Global Tel*Link Corp., 2016 WL 589676, at *7 (D.N.J. Feb. 11, 2016). They therefore “had neither the knowledge nor intent necessary to provide ‘unqualified acceptance.’ ” Id. (citation omitted). “Consequently, without an understanding that they were accepting to be bound by the [terms of use], which included an agreement to arbitrate, there was no ‘legally enforceable contract’ created between GTL and the Plaintiffs.” Id. GTL filed this timely appeal. II The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1332(d). We have jurisdiction to review the District Court’s order denying GTL’s motion to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 16(a)(1)(B). “We exercise plenary review over questions regarding the validity and enforceability of an agreement to arbitrate.” Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir. 2010) (en banc). III The FAA requires district courts to stay judicial proceedings and compel arbitration of claims covered by a written and enforceable arbitration agreement. 9 U.S.C. § 3. Thus, the first question is whether a valid arbitration agreement exists. Id. § 4. “Arbitration is a matter of contract between the parties and a judicial mandate to arbitrate must be predicated upon an agreement to that effect.” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980). “[T]he FAA does not require parties to arbitrate when they have not agreed to do so.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). A To determine whether a valid arbitration agreement exists, we “apply ordinary state-law principles that govern the formation of contracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Here, the District Court held that New Jersey law governs the question of contract formation, and the parties have not challenged that determination. Under New Jersey law, “[a]n agreement to arbitrate, like any other contract, must be the product of" }, { "docid": "16832891", "title": "", "text": "at bar, as explained more fully below. As noted in Waverlee Homes, “the ‘primary purpose’ of the FAA is to ensure ‘that private agreements to arbitrate are enforced according to their terms [and] arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their agreements as they see fit.’ ” 954 F.Supp. at 1533 (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford, Jr. Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 1255-56, 103 L.Ed.2d 488 (1989)). It is a cardinal principle of federal arbitration law that “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (I960)). Thus, as was true in Waverlee Homes, here the defendant manufacturer Homes of Legend must establish that, despite the absence of any explicit mention of Homes of Legend in the purchase contracts signed by the plaintiffs and their dealers, the plaintiffs nonetheless constructively, or as a matter of law, agreed to submit to arbitration the tort, breach-of-warranty, and Magnuson-Moss Act claims they now level against Homes of Legend. It is the court’s task, unless the parties have explicitly agreed otherwise, to determine whether an agreement to arbitrate exists between parties. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942-47, 115 S.Ct. 1920, 1923-25, 131 L.Ed.2d 985 (1995). In making this determination, the court should apply ordinary state common law governing the formation of contracts, with due regard for the federal policy favoring arbitration. Volt Info. Sciences, 489 U.S. at 475-76, 109 S.Ct. at 1254; see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62-63 & n. 9, 115 S.Ct. 1212, 1219 & n. 9, 131 L.Ed.2d 76 (1995). However, only state laws that are applicable to" }, { "docid": "6440532", "title": "", "text": "assignor both as to rights and duties, and a financing assignment in which only the assignor’s rights are transferred.” U.C.C. § 2-210(4) & Official Comment 5. The UCC makes explicit, however, that “the rights of an assignee are subject to ... all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom.” U.C.C. § 9-318(l)(a). This principle applies to arbitration provisions, which would be of no value if a party “could escape the effect of such a clause by assigning a claim subject to arbitration between the original parties to a third party.” Hosiery Manufacturers’ Corp. v. Goldston, 238 N.Y. 22, 28, 143 N.E. 779, 780 (1924). Even an assignment only of contract “rights” not entailing any duty of performance, see U.C.C. § 2-210, Official Comment 5, must be deemed to include the bargained-for remedial procedure. See U.C.C. § 1-201(36) (defining “rights” to include “remedies”). Under the Code, moreover, and in New York where the UCC has been adopted, an assignee is entitled to enforce an arbitration clause as one of the rights acquired by assignment, see In re Lipman (Haeuser Shellac Co.), 289 N.Y. 76, 81, 43 N.E.2d 817 (1942); Tanbro Fabrics Corp. v. Deering Milliken, Inc., 35 A.D.2d 469, 471, 318 N.Y.S.2d 764, 766 (1st Dept. aff'd), 29 N.Y.2d 690, 325 N.Y.S.2d 419 (1971), and may likewise be forced to arbitrate, see Blum’s Inc. v. Ferro Union Corp., 36 A.D.2d 584, 318 N.Y.S.2d 414, 415 (1st Dept.), aff'd, 29 N.Y.2d 689, 325 N.Y.S.2d 418 (1971) (“An assignee who has taken over the rights of an assign- or is bound to an arbitration clause in the assigned contract.”). At least one lower court has squarely held that a lender who takes an assignment of accounts receivable as security for a loan is required to follow the remedial procedure specified in the assigned contract. Cutting Room Appliances Corp. v. National Bronx Bank, 97 N.Y.S.2d 363 (Sup.Ct.Bronx Cty.1950). Paribas attempts to avoid this rule by arguing that Amoco had notice of the assignment and therefore cannot assert any defense. To the extent this" }, { "docid": "5123018", "title": "", "text": "“a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate.” Id. at 25 n. 32, 103 S.Ct. at 942 n. 32. While courts must ensure that private agreements to arbitrate be “rigorously enforce[d],” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985), the court must first determine whether the parties intended to arbitrate a particular dispute. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985). “[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (internal quotation marks and citation omitted). Therefore, a court must first decide (1) whether a party agreed to submit to arbitration, and (2) which disputes the parties agreed to submit to arbitration. Generally, “[wjhen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, — U.S. -, -, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); see also Mastrobuono v. Shearson Lehman Hutton, Inc., — U.S. -, - & n. 9, 115 S.Ct. 1212, 1219 & n. 9, 131 L.Ed.2d 76 (1995) (applying the law of Illinois (the forum state and the state where the contract was executed) and New York (the state indicated in the contract’s choice of law clause) and citing the Restatement (Second) of Contracts and federal common-law for the proposition that a court should construe ambiguous language against the interest of the party that drafted it); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 (1989) (noting that “general state law principles of contract interpretation [apply] to the interpretation of an arbitration agreement,” but the federal policy favoring arbitration" }, { "docid": "22135374", "title": "", "text": "the Webbs argue that the district court erred in summarily disposing of their declaratory judgment action on the pleadings. Before addressing the Webbs’ arguments, we briefly outline the legal framework involved in this appeal. In adjudicating a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-step inquiry. The first step is to determine whether the parties agreed to arbitrate the dispute in question. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985); Folse v. Richard Wolf Medical Instruments Corp., 56 F.3d 603, 605 (5th Cir.1995); R.M. Perez & Assocs., Inc. v. Welch, 960 F.2d 534, 538 (5th Cir.1992). This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 392 (8th Cir.1994); PaineWebber Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir.1990). When deciding whether the parties agreed to arbitrate the dispute in question, “courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, — U.S. -,-, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); see also Perry v. Thomas, 482 U.S. 483, 492-93 n. 9, 107 S.Ct. 2520, 2526-28 n. 9, 96 L.Ed.2d 426 (1987). In applying state law, however, “due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself must be resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989). The second step is to determine “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. at 3355; see also Folse, 56 F.3d at 605; R.M. Perez & Assocs., 960 F.2d at 538. The Webbs’ first argument relates to the application of state law to determine whether" }, { "docid": "3118315", "title": "", "text": "In this limited review, we look to state contract law to determine the scope and meaning of an arbitration clause, see Progressive Casualty Insurance Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 45-46 (2d Cir.1993) (“[W]e apply state law in determining whether the parties have agreed to arbitrate.”), while remaining mindful of the FAA’s overriding preference for arbitration. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 475, 109 S.Ct. 1248, 103 L.Ed.2d 488 (“[I]n applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA], due regard must be given to the [flederal policy favoring arbitration .... ” (citation omitted)). GMAC points to a line of New York cases dating back to the first half of the century to support its proposition that a finance assignee is not obligated to arbitrate under the contract assigned, unless he has undertaken this obligation. This line of cases is based on two common law principles: (1) a finance assignee is assigned rights, but not obligations, under the contract; and (2) arbitration is a contractual obligation. See, e.g., United States v. Panhandle Eastern Corp., et al., 672 F.Supp. 149 (D.Del.1987); Rosenthal & Rosenthal, Inc. v. John Kunstadt, Inc., 106 A.D.2d 277, 482 N.Y.S.2d 287 (App. Div. 1st Dep’t 1984); Kaufman v. William Iselin & Co., Inc., 272 A.D. 578, 74 N.Y.S.2d 23 (App.Div. 1st Dep’t 1947); see also Gruntal & Co., Inc. v. Ronald Steinberg, et al., 854 F.Supp. 324 (D.N.J.1994) (applying New York law and citing New York holdings). Plaintiffs include in this line Lachmar v. Trunkline LNG Co., 753 F.2d 8 (2d Cir.1985), a two-page per cu-riam Second Circuit opinion that held that the Maritime Administration (“Marad”) (a federal entity) was not bound to appear at an arbitration between two other parties to a contract in which it had a security interest. However, GMAC’s reliance on this line of cases is misplaced. The New York common law principle that arbitration was an “obligation” not assumed by a finance assignee was superseded by" }, { "docid": "23261746", "title": "", "text": "also Snowden v. Checkpoint Cashing, 290 F.3d 631, 637 (4th Cir.2002) (citing favorably decisions from other circuits refusing to compel arbitration where a party contends that it never assented to the contract containing the arbitration provision). . EEOC v. Waffle House, Inc., 534 U.S. 279, 293-94, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (citing Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478-79, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (internal quotation marks omitted)). . Waffle House, Inc., 534 U.S. at 294, 122 S.Ct. 754. . Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (emphasis added). . 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). . Id. at 940-41, 115 S.Ct. 1920. . Id. at 942, 115 S.Ct. 1920. . Id. at 944, 115 S.Ct. 1920 (internal quotation marks and brackets omitted). . Id. at 944, 115 S.Ct. 1920. . 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987). . Id. at 492, 107 S.Ct. 2520. . See Fleetwood Enterprises, Inc. v. Gaskamp, 280 F.3d 1069 (5th Cir.2002); First Options of Chicago v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). . See Jolley v. Welch, 904 F.2d 988, 993-94 (5th Cir.1990); see supra notes 27 & 28 and accompanying text. . See Primerica Life Ins. Co. v. Brown, 304 F.3d 469 (5th Cir.2002); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). . See Primerica Life Ins. Co., 304 F.3d at 472. . See Lawrence v. Comprehensive Bus. Servs. Co., 833 F.2d 1159 (5th Cir.1987) (compelling arbitration of claim that contract was void as illegal); Mesa Operating Ltd. P'ship v. La. Intrastate Gas Corp., 797 F.2d 238 (5th Cir.1986) (same). . See Kulukundis Shipping v. Amtorg Trading Corp., 126 F.2d 978, 986 (2nd Cir.1942) (noting that if an arbitrator had the authority to reexamine a court’s prior determination that an agreement existed, it \"would (1) negate the court's prior contrary decision on a subject which, admittedly," }, { "docid": "22444798", "title": "", "text": "adjudicating a motion to compel arbitration under the Federal Arbitration Act, courts begin by determining whether the parties agreed to arbitrate the dispute. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985); Folse v. Richard Wolf Medical Instruments Corp., 56 F.3d 603, 605 (5th Cir.1995). This determination is generally made on the basis of “ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). Next, the Court must determine “whether legal constraints external to the parties’ agreement foreclosed the arbitration of those claims.” Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. at 3355; see also Folse, 56 F.3d at 605. In the present ease, the parties agree that Texas state law governs matters that are not addressed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. II. The Claims of the Gaskamp Children As stated earlier, the first step in evaluating a motion to compel arbitration is to determine whether the parties agreed to arbitrate. This determination depends on two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Webb, 89 F.3d at 258. In determining whether the dispute falls within the scope of the arbitration agreement, “ambiguities ... [are] resolved in favor of arbitration.” Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). However, this federal policy favoring arbitration does not apply to the determination of whether there is a valid agreement to arbitrate between the parties; instead “[ordinary contract principles determine who is bound.” Daisy Mfg. Co., Inc., v. NCR Corp., 29 F.3d 389, 392 (8th Cir.1994); see also Volt Info., 489 U.S. at 478, 109 S.Ct. 1248 (“[T]he FAA does not require parties to arbitrate when they have not agreed to do so.”); EEOC v. Waffle House, — U.S. -, 122 S.Ct." }, { "docid": "11803984", "title": "", "text": "on the court’s charge when addressing a motion to compel arbitration, this court noted in Raesly v. Grand Housing, Inc., 105 F.Supp.2d 562 (S.D.Miss.2000), that, When deciding the broader issue of whether the parties agreed to arbitrate the dispute in question, “the court must look to the body of federal arbitration law,” [Bhatia v. Johnston, 818 F.2d 418, 421 (5th Cir.1987) ], which recognizes that “the question of arbitrability [is to] be addressed with a ‘healthy regard for the federal policy favoring arbitration,’ with doubts regarding the scope of the agreement resolved in favor of arbitration,” id. (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). As to the more specific issue of whether there is a valid agreement to arbitrate, “ ‘courts gener ally ... should apply ordinary state-law principles that govern the formation of contracts’,” Webb, 89 F.3d at 257 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995)), but in doing so, must give “due regard ... to the federal policy favoring arbitration,” id. (quoting Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989)). Raesly, at 569-70. In response to defendants’ motion in the case at bar, plaintiffs assert a variety of arguments against enforcement of the arbitration agreement at issue, based primarily on their contention that the agreement is unconscionable and for that reason may not be enforced. This court observed in Raesly that “[u]nder Mississippi law, a court may refuse to enforce a contract, or any clause of a contract which is found to have been unconscionable when made. See Miss.Code Ann. § 75-2-302. The court may ‘pass directly on the unconscionability of the contract or particular clause therein and ... make a conclusion of law as to its unconscionability.’ Official Comment Miss.Code Ann. § 75-2-302.” Raesly, at 574. The court, quoting Judge William H. Barbour’s opinion in Pridgen v. Green Tree Financial Servicing Corp., Inc.," }, { "docid": "5123019", "title": "", "text": "whether the parties agreed to arbitrate a certain matter (including arbitrability), courts ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, — U.S. -, -, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); see also Mastrobuono v. Shearson Lehman Hutton, Inc., — U.S. -, - & n. 9, 115 S.Ct. 1212, 1219 & n. 9, 131 L.Ed.2d 76 (1995) (applying the law of Illinois (the forum state and the state where the contract was executed) and New York (the state indicated in the contract’s choice of law clause) and citing the Restatement (Second) of Contracts and federal common-law for the proposition that a court should construe ambiguous language against the interest of the party that drafted it); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 (1989) (noting that “general state law principles of contract interpretation [apply] to the interpretation of an arbitration agreement,” but the federal policy favoring arbitration counsels construing ambiguities in the arbitration clause itself in favor of arbitration); Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 2527 n. 9, 96 L.Ed.2d 426 (1987) (noting that agreements to arbitrate are valid, irrevocable, and enforceable as a matter of federal law, but state law applies to questions “concerning the validity, revocability, and enforceability of contracts generally”). The question of arbitrability— whether a party is bound to arbitrate and what issues it is bound to arbitrate — is an issue for the courts, not the arbitrator, “[u]n-less the parties clearly and unmistakably provide otherwise.” AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418. Thus, if an agreement is silent or ambiguous regarding who should determine arbitrability, the issue is presumed to be a matter for the courts. However, if an agreement is silent or ambiguous regarding whether a particular dispute is arbitrable, the presumption is reversed, and it is assumed that the dispute is subject to arbitration. See First Options, — U.S. at -, 115 S.Ct. at" }, { "docid": "21212983", "title": "", "text": "apply state law, pursuant to section two of the FAA.” Harris, 183 F.3d at 179. In particular, “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902 (1996). In applying ordinary state law principles to evaluate arbitration agreements, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995), the cases have indicated that courts may look in particular to the laws of the involved state or territory. See, e.g., Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269, 276 (3d Cir.2004) (applying Virgin Islands law to determine whether arbitration agreement was enforceable in lawsuit based on Title VII); Spinetti v. Serv. Corp. Int’l, 324 F.3d 212, 214 (3d Cir.2003) (applying Pennsylvania law to determine whether arbitration agreement was enforceable in action based on Title VII and the ADEA); Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir.2002) (applying Pennsylvania law to determine whether arbitration agreement was enforceable in lawsuit based on Title VII); Harris, 183 F.3d at 181-84 (applying Pennsylvania law to determine whether arbitration agreement was unconscionable in lawsuit based on RICO). The cardinal principle of the law of arbitration is that “under the [FAA, arbitration] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit.” Volt Info. Sciences, Inc. v. Bd. of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 1256, 103 L.Ed.2d 488 (1989). That freedom extends to choice-of-law provisions governing agreements, including agreements to arbitrate. See Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir.2005) (applying New York law pursuant to choice-of-law provision in determining whether to enforce arbitration agreement); Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 155 (3d Cir.2001) (“In general, we respect the choice of law that parties agree upon to resolve their private disputes.”); see also Suburban Leisure Ctr., Inc. v." }, { "docid": "1009687", "title": "", "text": "agreement. 9 U.S.C. § 3. Thus, the first question is whether a valid arbitration agreement exists. Id. § 4. “Arbitration is a matter of contract between the parties and a judicial mandate to arbitrate must be predicated upon an agreement to that effect.” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980). “[T]he FAA does not require parties to arbitrate when they have not agreed to do so.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). A To determine whether a valid arbitration agreement exists, we “apply ordinary state-law principles that govern the formation of contracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Here, the District Court held that New Jersey law governs the question of contract formation, and the parties have not challenged that determination. Under New Jersey law, “[a]n agreement to arbitrate, like any other contract, must be the product of mutual assent, as determined under customary principles of contract law.” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 99 A.3d 306, 312-13 (2014) (internal quotation marks and citation omitted), cert. denied, — U.S. —, 135 S.Ct. 2804, 192 L.Ed.2d 847 (2015). “Mutual assent requires that the parties have an understanding of the terms to which they have agreed.” Id. at 313. As the New Jersey Supreme Court explained, this principle is especially important in arbitration cases. “[B]ecause arbitration involves a waiver of the right to pursue a case in a judicial forum, courts take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent.” Id. (internal quotation marks and citation omitted). To manifest assent, an offeree must provide “unqualified acceptance,” which can be express or implied by con duct. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 608 A.2d 280, 284 (N.J. 1992) (citing Restatement (Second) of Contracts § 19(1) (1981)). “Silence does not ordinarily manifest assent, but the relationships" }, { "docid": "22116406", "title": "", "text": "4 F.3d 742, 744 (9th Cir.1993); Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 887 (3d Cir.1992); MidAmerica Federal Sav. and Loan Ass’n v. Shearson/American Express, Inc., 886 F.2d 1249, 1259 (10th Cir.1989). Paradoxically, the majority opinion states that we review to determine only whether the district court has abused its discretion in applying equitable estoppel, but that an application of law that is erroneous, or an assessment of the evidence that is clearly erroneous, constitutes an abuse of discretion. These contradictory statements of the standard can only lead to confusion. In my opinion, abuse of discretion does not belong in our standard for reviewing whether the ordinary state-law requisites of promissory or equitable es-toppel have been met, but the district court may well have discretion in limiting the remedy as justice requires. See Restatement (Second) of ContRacts § 90(1). . Statement of Samuel Williston, 4 ALI Proceedings 61, 89-90 (1926) (quoted by 4 Richard A. Lord, Williston on Contracts § 8.5, at 73 (4th ed.1992)) [hereinafter Williston]. . First Options, 514 U.S. at 943, 115 S.Ct. 1920 (citing AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57-58 and n. 9, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 271, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625-26, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). . Id. at 942, 115 S.Ct. 1920. . Id. at 944, 115 S.Ct. 1920 (citing Mastrobuono, 514 U.S. at 62-63 & n. 9, 115 S.Ct. 1212; Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989); Perry v. Thomas, 482 U.S. 483, 492-93 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); 1 Gabriel M. Wilner, Domke Comm Arbitration § 4:04, at 15 (Rev. Ed. 1993)) [hereinafter Domke]. . Id. at 947, 115 S.Ct. 1920 (citing Dean Witter" } ]

[ { "docid": "7917456", "title": "", "text": "125 (7th Cir.1982). The Court has already held that specific conditions at Marion, when viewed separately and individually, do not violate the Constitution. Under Madyun, the Court cannot find that these “otherwise unquestionably constitutional conditions,” in combination, constitute cruel and unusual punishment. Additionally and more importantly, the Seventh Circuit has recently held that the totality of conditions at Marion does not violate the eighth amendment. In Caldwell v. Miller, plaintiff claimed that the conditions he challenged (restrictions on exercise, the ban on religious services, the suspension of contact visitation, and restrictions on use of the law library), when taken together, constituted cruel and unusual punishment. The court held: So considered, the total effect of the conditions Caldwell challenges neither result in an “unquestioned and serious deprivation of basic human needs,” ... nor do they cause intolerable or shocking prison conditions. As we have noted, mere “inactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment.” Caldwell, 790 F.2d at 601 n. 16. And in Miller v. Henman, the court, citing Caldwell, expressly stated, “We have held that the lockdown does not violate the Constitution, including the due process clause of the fifth amendment.” Miller, 804 F.2d at 422. Plaintiffs contend, nevertheless, that the psychological effects of confinement at Marion have resulted in cruel and unusual punishment. The evidence before this Court indicates otherwise. Dr. William Logan, the director of law and psychiatry at the Meninger Foundation, and an expert witness in this case, conducted a study to determine the mental effects of confinement at Marion. The study began in June, 1985 and at the time of the December, 1986 hearings, Dr. Logan had spent approximately 400 hours interviewing inmates, compiling psychological test results, and reviewing inmate files. A control group from Leavenworth was used in the study. Dr. Logan interviewed sixty-four inmates at Marion, with the interviews ranging from forty-five minutes to two and one-half hours. (The average interview lasted one hour and fifteen minutes.) Twenty-seven inmates from Leavenworth were interviewed. Although the study will not be complete until the spring of" } ]

[ { "docid": "13527067", "title": "", "text": "state of mind is one of “deliberate indifference” to inmate health or safety[.] 511 U.S. at 834, 114 S.Ct. 1970 (citations omitted). Conditions the Supreme Court has found to violate the Eighth Amendment include the deprivation of medical treatment and “deliberate indifference to serious medical needs,” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); the use of excessive force against inmates, Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); and the failure to provide sufficient food, sanitary housing, and safety from beatings or torture by other inmates or guards, Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)(citing with approval the district court’s findings on cruel and unusual punishment in Finney v. Hutto, 410 F.Supp. 251 (E.D.Ark. 1976)). This case does not involve similar treatment. Solitary confinement, per se, has not been held to violate the Cruel and Unusual Punishment Clause. Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir.1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Federal civilian courts have reviewed the specific conditions of solitary confinement to determine whether the confinement involved deprivation of basic needs or unnecessary infliction of pain. See Hutto, supra at 686-87, 98 S.Ct. 2565. They have held that routine conditions associated with punitive or administrative segregation do not rise to the level of a deprivation of life’s necessities and violation of the Eighth Amendment. These conditions include restrictions or prohibitions on the opportunity to talk to other prisoners, exercise outside a cell, visitation privileges, telephone privileges, meal choices, and reading material. See, e.g., O’Brien v. Moriarty, 489 F.2d 941 (1st Cir.1974); Sostre, 442 F.2d at 192, Gibson v. Lynch, 652 F.2d 348 (3d Cir.1981), cert. denied, 462 U.S. 1137, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir.1975); Holloway v. Gunnell, 685 F.2d 150 (5th Cir.1982); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir.1987), cert. denied, 484 U.S. 935, 108 S.Ct." }, { "docid": "18575211", "title": "", "text": "court has “been hesitant in the past to apply the Eighth Amendment to claims of physical and mental deterioration by prisoners in the general prison population ... [the plaintiff’s] twelve-year confinement in [solitary confinement] raises serious constitutional questions”); Pepperling v. Crist, 678 F.2d 787, 789 (9th Cir.1982) (“The deprivations associated with an institutional lock-up, including twenty-four hour confinement, and curtailment of all association, exercise and normal vocational and educational activity, may constitute a ... violation of the Eighth Amendment, if they persist too long.”). . See, e.g., Smith v. Coughlin, 748 F.2d 783, 787 (2nd Cir.1984) (district court found that plaintiff was not suffering from any psychological damage as a result of conditions of confinement); Sostre v. McGinnis, 442 F.2d 178, 193 n. 24 (2nd Cir.1971) (no evidence of psychological injury to the health of the prisoner), cert. denied, 404, 405 U.S. 1049, 978, 92 S.Ct. 719, 1190, 30, 31 L.Ed.2d 740, 254 (1972); Bruscino v. Carlson, 654 F.Supp. 609, 621 (S.D.Ill.1987) (evidence presented did not support plaintiffs' claims regarding the mental effects of challenged conditions), aff'd, 854 F.2d 162 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989). . As the Supreme Court has made clear, conditions of confinement may establish an Eighth Amendment violation \"in combination,\" even when each would not do so alone, \"when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.\" Wilson, 501 U.S. at 304, 111 S.Ct. at 2327. Thus, even though the challenged conditions in this case may not individually deprive an inmate of any basic human need or violate the Constitution, plaintiffs may attempt to show that, in combination, they deprive plaintiffs of an identifiable human need, which in this case is the inmate’s sanity or mental health. We also note that defendants have not disputed that the conditions at issue here are more restrictive than those that were in effect at San Quentin prison during the Toussaint litigation. For example, inmates there were permitted the opportunity for group exercise in a larger yard with equipment. Also, \"movement throughout the" }, { "docid": "874664", "title": "", "text": "Dept. of Social Services, 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005-1006, 103 L.Ed.2d 249 (1989)). In Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), the Supreme Court provided the framework which courts must use when deciding whether certain conditions of confinement constitute cruel and unusual punishment. Plaintiffs in prison conditions cases must satisfy objective and subjective standards before a court can find that a correctional institution has violated the Eighth Amendment. Under the objective standard, plaintiffs must demonstrate a deprivation which amounts to a wanton and unnecessary infliction of pain. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Though a condition may be harsh, it is a constitutional element of a prisoner’s penalty if it is not cruel and unusual relative to contemporary standards of decency. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Since the Constitution “does not mandate comfortable prisons, ... only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). The Eighth Amendment does not protect prisoners from inadvertent injury or errors in good faith. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). The combination of some conditions of confinement may constitute an Eighth Amendment violation though each would not do so alone, “but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). A condition which has not caused any present injury may still violate the Eighth Amendment if it “is sure or very likely to cause serious illness and needless suffering.” Helling v. McKinney, — U.S. —, —, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22" }, { "docid": "22947865", "title": "", "text": "Gates v. Collier, 501 F.2d 1291, 1308-09 (5th Cir. 1974); Holt v. Sarver, 309 F.Supp. 362, 376-78, 381 (E.D.Ark. 1970), aff’d 442 F.2d 304 (8th Cir. 1971). The defendants in these cases have failed to carry out that duty. The evidence establishes that inmates are housed in virtually unguarded, overcrowded dormitories, with no realistic attempt by officials to separate violent, aggressive inmates from those who are passive or weak. The tension generated by idleness and deplorable living conditions contributes further to the ever-present threat of violence from which inmates have no refuge. The evidence in these cases also establishes that prison conditions are so debilitating that they necessarily deprive inmates of any opportunity to rehabilitate themselves, or even to maintain skills already possessed. While courts have thus far declined to elevate a positive rehabilitation program to the level of a constitutional right, it is clear that a penal system cannot be operated in such a manner that. it impedes an inmate’s ability to attempt rehabilitation, or simply to avoid physical, mental or social deterioration. The absence of an affirmative program of training and rehabilitation may have constitutional significance where in the absence of such a program conditions and practices exist which actually militate against reform and rehabilitation. Holt v. Sarver, 309 F.Supp. at 379. . Not only is it cruel and unusual punishment to confine a person in an institution under circumstances which increase the likelihood of future confinement, but these same conditions defeat the goal of rehabilitation which prison officials have set for their institutions. See James v. Wallace, 382 F.Supp. 1177, 1180 n.4 (M.D.Ala.1974). Prisoners are protected by the Due Process and Equal Protection clauses of the Fourteenth Amendment, Washington v. Lee, supra; therefore, they must be free from arbitrary and capricious treatment by prison officials. Sostre v, McGinnis, 442 F.2d 178, 198-99 (2d Cir. 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1971); Jackson v. Godwin, 400 F.2d 529, 532 (5th" }, { "docid": "4252087", "title": "", "text": "outdoor recreation only 45 minutes per week. An Eighth Amendment claim that a prison official has deprived inmates of humane conditions of confinement must meet two requirements, one objective and one subjective. Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). Under the objective requirement, the prison official’s acts or omissions must deprive an inmate of “ ‘the minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399-2400, 69 L.Ed.2d 59 (1981)). The subjective requirement, relating to the defendant’s state of mind, requires deliberate indifference. Farmer, — U.S. at —, 114 S.Ct. at 1979. We conclude that Smith has met the objective element of the Eighth Amendment analysis by alleging the deprivation of a. basic human need. See Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). Before the period in question, several circuits, including this one, had held that deprivation of outdoor exercise could constitute cruel and unusual punishment. Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979); Davenport v. DeRohertis, 844 F.2d 1310, 1314-15 (7th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Ruiz v. Estelle, 679 F.2d 1115, 1151-52, vacated in part as moot, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980). This court recognized in Spain that “some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates.” Spain, 600 F.2d at 199. We emphasized that the plaintiffs were in long-term incarceration where they were in continuous segregation, generally spending twenty-four hours each-day alone in their cells. Id. Under those conditions, deprivation of outdoor exercise constituted cruel and unusual punishment. Id.; see also Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir.1984) (denial of outdoor exercise to inmates assigned to administrative segregation for over one year raised “substantial constitutional question”). Defendants’ analogy to LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir.1993), is flawed." }, { "docid": "17159091", "title": "", "text": "rights, others may establish an Eighth Amendment violation “ ‘in combination’ when each would not do so alone.” Wilson, 501 U.S. at 304, 111 S.Ct. 2321. Conditions of confinement “in combination” may support a finding of constitutional violation when the conditions “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise ... Id. For instance, placing a schizophrenic inmate in a badly overcrowded cell amounts to a “recipe for an explosion” and “death”. Cortes-Quinones v. Jimenez Nettleship, 842 F.2d 556, 558-560 (1st Cir.1988), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)(Cories-Qm-nones). 306. Similarly, defendants’ lack of adequate organization and control in the administration of health services has been noted by the Court of Appeals for the First Circuit in Miranda, 770 F.2d at 261, fn. 4: “This is not a case in which it is inconsistent to find liability on the part of both the local prison officials and the central prison administration. A jury could have found that it was the combination of conditions authorized by the Correctional Department [sic] and specific actions taken by the Areeibo Jail Official’s which caused plaintiffs’ injury” (italics in original). Regarding lack of adequate organization and control in the administration of health services that are tantamount to deliberate indifference, see also: Todaro, 565 F.2d at 52; Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991); DeGidio v. Pung, 920 F.2d 525, 529-33 (8th Cir.1990). 307. In addition, defendants have consistently failed to provide adequate sanitation and security to correctional health personnel thereby contributing to the development of hostile and indifferent attitudes toward inmates’ overall health needs. The resulting circumstances no doubt amount to deliberate indifference as proscribed under the law. 308. The non-existence of an integral system or unitary institutional structure of administration and delivery of health services denies the plaintiff class or delays their access to necessary medical care in wanton disregard to basic medical and human needs, causing infliction of pain without any peno-logical purpose. Defendants’ breakdown of regularity and continuity of services, including medical services," }, { "docid": "22820029", "title": "", "text": "59 (1981) (emphasis added) observed that conditions of confinement, “alone or in combination” may unconstitutionally deprive inmates of minimum necessities. Other courts have readily adopted the totality of circumstances analysis when examining the constitutionality of prison conditions under the Eighth Amendment. See, e.g., Tillery v. Owens, 907 F.2d 418, 426 (3rd Cir.1990) (“in determining whether conditions of confinement violate the Eighth Amendment we must look at the totality of the conditions within the institution”); Gillespie v. Crawford, 833 F.2d 47, 50 (5th Cir.1987), reinstated, in part, en banc, 858 F.2d 1101 (5th Cir.1988) (numerous deficient prison conditions, considered together, state a claim under § 1983); Hite v. Leeke, 564 F.2d 670, 673 (4th Cir.1977) (finding no unconstitutional overcrowding and recognizing that, in this case, overcrowding was not part of a larger problem of unsanitary conditions, giving rise to the “totality of conditions approach”). However, the recent Supreme Court opinion in Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991), has narrowed somewhat the “totality of conditions” approach. In Wilson, the Court noted that: Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets.... To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists. Id. (emphasis in original) (citations omitted). Thus, to state a claim under the Eighth Amendment, Williams had to demonstrate that the overcrowding, in light of overall prison conditions, deprived him of a specific human need. It is clear that double or triple celling of inmates is not per se unconstitutional. See, e.g., Rhodes, 452 U.S. at 348," }, { "docid": "22820030", "title": "", "text": "Court noted that: Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets.... To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists. Id. (emphasis in original) (citations omitted). Thus, to state a claim under the Eighth Amendment, Williams had to demonstrate that the overcrowding, in light of overall prison conditions, deprived him of a specific human need. It is clear that double or triple celling of inmates is not per se unconstitutional. See, e.g., Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400 (double-celling not per se unconstitutional); Hite v. Leeke, 564 F.2d 670, 673-74 (temporary triple-celling not per se unconstitutional). But, overcrowding accompanied by unsanitary and dangerous condi tions can constitute an Eighth Amendment violation, provided an identifiable human need is being deprived. See Wilson, 111 S.Ct. at 2327; Tillery, 907 F.2d at 423; Gillespie, 833 F.2d at 50; French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984). Thus, the task remaining for us is to determine whether Williams’ verified complaint alleged sufficient prison conditions, which in concert amounted to deprivation of a human necessity, thereby rendering the cumulative effect of the prison conditions unconstitutional. It has been Williams’ contention that his verified complaint described unsanitary conditions, which combined with the overcrowding to render his confinement unconstitutional. He has described his cell toilet, shared by twelve inmates, as “constantly coated with urine day and night.” He has contended that only four showers" }, { "docid": "21569271", "title": "", "text": "liberty without the due process of law, and no other express guarantee of the Constitution, are constitutional if they do not “amount to punishment of the detainee.” Bell, 441 U.S. at 535, 99 S.Ct. at 1872. Absent a showing of an expressed intent to punish on the part of jail officials, if such a condition or restriction of pretrial detention “is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ ” Id. at 538-39, 99 S.Ct. at 1874. Third, all inmates at the jail are also protected by the Fourteenth Amendment against deprivation without due process of law of such protected liberty interests that may arise from state statutes, regulations, or policies. See Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). 1. Personal Safety Thompson and Holdsworth allege that by failing to classify prisoners (e.g. housing felons and misdemeanants separately), maintain an adequate number of trained staff members, and supervise the inmates, the County violated the plaintiffs’ basic Eighth Amendment right to be reasonably free from violence and sexual assault. Plaintiffs further contend that the lack of a classification system deprived them, without due process, of a protected liberty interest created by Section 5120:1-8-02 of the Ohio Administrative Code. As noted by the district court, plaintiffs’ Eighth Amendment claims may not be based on the totality of the circumstances, but rather must identify a specific condition that violates the inmates’ right to personal safety. Walker v. Mintzes, 771 F.2d 920, 925 (6th Cir.1985). The Supreme Court has held that “[s ]ome conditions of confinement may establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271, 283 (1991). A general allegation of indecent circumstances usually is not sufficient. Birrell v. Brown, 867 F.2d 956, 958 (6th Cir.1989). Here, plaintiffs first contend that" }, { "docid": "13527068", "title": "", "text": "30 L.Ed.2d 740, and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Federal civilian courts have reviewed the specific conditions of solitary confinement to determine whether the confinement involved deprivation of basic needs or unnecessary infliction of pain. See Hutto, supra at 686-87, 98 S.Ct. 2565. They have held that routine conditions associated with punitive or administrative segregation do not rise to the level of a deprivation of life’s necessities and violation of the Eighth Amendment. These conditions include restrictions or prohibitions on the opportunity to talk to other prisoners, exercise outside a cell, visitation privileges, telephone privileges, meal choices, and reading material. See, e.g., O’Brien v. Moriarty, 489 F.2d 941 (1st Cir.1974); Sostre, 442 F.2d at 192, Gibson v. Lynch, 652 F.2d 348 (3d Cir.1981), cert. denied, 462 U.S. 1137, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir.1975); Holloway v. Gunnell, 685 F.2d 150 (5th Cir.1982); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir.1987), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Bass v. Perrin, 170 F.3d 1312 (11th Cir.1999). The courts have also rejected the contention that deprivation of human contact, including the harmful effect it may potentially have on a prisoner’s mental health, violates the Eighth Amendment. See Jackson v. Meachum, 699 F.2d 578 (1st Cir.1983); Sostre v. McGinnis and Sweet v. South Carolina Dept. of Corrections, both supra. Furthermore, the length of a prisoner’s stay in segregation does not, by itself, constitute cruel and unusual punishment, but is simply a factor to be considered along with the other aspects of confinement. Hutto, 437 U.S. at 686, 98 S.Ct. 2565. Appellant has not demonstrated that the conditions of his confinement were more adverse than those faced by civilian prisoners whose claims of cruel and unusual punishment have been rejected by other courts. Appellant contends, however, that because he did not fit any of the criteria for pretrial or post-trial maximum-custody" }, { "docid": "20083883", "title": "", "text": "cruel and unusual under contemporary standards are not unconstitutional. Rhodes, 452 U.S. at 348, 101 S.Ct. 2392. To establish an Eighth Amendment claim, Mitchell must show that he has been deprived of “the minimal civilized measure of life’s necessities.” Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir.1997) (quoting Young v. Quinlan, 960 F.2d 351, 359 (3d Cir.1992)). This includes showing that the conditions of his confinement pose “a substantial risk of serious harm” to his health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. In reviewing this type of claim, courts have stressed the duration of the complainant’s exposure to the alleged unconstitutional conditions and the “totality of the circumstances” as critical to a finding of cruel and inhumane treatment. Rhodes, 452 U.S. at 362-63, 101 S.Ct. 2392. Moreover, the focus must be on the deprivation of a particular basic necessity. As explained by the United States Supreme Court: Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise-for example, a low cell temperature at night combined with a failure to issue blankets. To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can rise to the level of cruel and unusual punishment when no specific deprivation of single human need exists. Wilson v. Seiter, 501 U.S. 294, 304-05, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (citations omitted). See also Tillery v. Owens, 907 F.2d 418, 427 (3d Cir.1990) (elaborating on factors to be considered, including “food, medical care, sanitation, control of vermin, lighting, heating, ventilation, noise level, bedding, furniture, education and rehabilitation programs, safety and security and staffing”) (citing Peterkin v. Jeffes, 855 F.2d 1021, 1025-26 & n. 7 (3d Cir.1988)). In addition to showing conditions that pose a significant risk of serious harm, the inmate must" }, { "docid": "6939874", "title": "", "text": "ventilation, heating, cleaning, bedding, nutrition; medical care, opportunities to wash, the duration of confinement, and whether the confinement bears a reasonable relation to the purpose for which the individual is segregated, all pertain to the constitutionality of segregated confinement. The “inescapable accompaniments of segregation” (isolation of companionship, restriction on intellectual stimulation and prolonged inactivity), were regarded in Sweet as not rendering segregation unconstitutional in the absence of other illegitimate deprivations. 529 F.2d at 860-61; see also Hutto v. Finney, 437 U.S. 678, 685-88, 98 S.Ct. 2565, 2570-72, 57 L.Ed.2d 522 (1978); Sostre v. McGinnis, 442 F.2d 178, 192-94, 207-09 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Sweet demonstrates that the cumulative effect of all the conditions of segregation must be looked to in considering an Eighth Amendment challenge. This is reflected in a number of decisions which have considered the constitutionality of strip cells. In McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 782 (1976), the court held that the following conditions in a mental observation cell constituted a per se violation of the Eighth Amendment: McCray was kept naked in a barren cell without blanket or mattress and with nowhere to sit, lie or lean except against bare concrete or bare tile. He had no sink or running water; his only toilet was a hole in the floor, the cover of which was encrusted with human excrement. He was denied all articles of personal hygiene. Society would hardly tolerate such confinement for a suspected mental patient, not convicted of crime; we cannot conceive that decent society would tolerate it even for a suspected mental patient who had been convicted of crime. 516 F.2d at 363. In Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978), the court described a cell which was or could be darkened, was without a bed or other furnishings, was without toilet articles or toilet paper and in which the prisoner was confined nude as “unquestionably" }, { "docid": "12869379", "title": "", "text": "indifference claims under the Due Process Clause. A. Under both the Eighth and • Fourteenth Amendments, to establish an objective deprivation, “the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health,” Walker, 717 F.3d at 125, which includes the risk of serious damage to “physical and mental soundness,” LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972). There is no “static test” to determine whether a deprivation is sufficiently serious; instead, “the conditions themselves must be evaluated in light of contemporary standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). For example, “[w]e have held that prisoners may not be deprived of their basic human needs — e.g., food, clothing, shelter, medical care,'and reasonable safety — and they may not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future health.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (citation and internal quotation marks omitted). “[CJonditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Unsanitary conditions, especially when coupled with other mutually enforcing conditions, such as poor ventilation and lack of hygienic items (in particular, toilet paper), can rise to the level of an objective deprivation. See id. at 127-28 (collecting cases). In Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015), this Court recently reiterated that the proper lens through which to analyze allegedly unconstitutional unsanitary conditions of confinement is with reference to their- severity and duration, not the detainee’s resulting injury. In Willey, a convicted prisoner brought, among other claims, a claim under the Eighth Amendment against officers at a prison who allegedly exposed him to unsanitary" }, { "docid": "18575212", "title": "", "text": "conditions), aff'd, 854 F.2d 162 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989). . As the Supreme Court has made clear, conditions of confinement may establish an Eighth Amendment violation \"in combination,\" even when each would not do so alone, \"when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.\" Wilson, 501 U.S. at 304, 111 S.Ct. at 2327. Thus, even though the challenged conditions in this case may not individually deprive an inmate of any basic human need or violate the Constitution, plaintiffs may attempt to show that, in combination, they deprive plaintiffs of an identifiable human need, which in this case is the inmate’s sanity or mental health. We also note that defendants have not disputed that the conditions at issue here are more restrictive than those that were in effect at San Quentin prison during the Toussaint litigation. For example, inmates there were permitted the opportunity for group exercise in a larger yard with equipment. Also, \"movement throughout the institution was nowhere near as significantly controlled and surveilled as it is in Pelican Bay.” Haney Tr. 6-1053; see also Haney Decl. at 59. . Although Helling involved a risk to an inmate’s physical health, it appears that the principles enunciated would apply in the context of mental health as well. This is consistent with the fact that courts have borrowed standards utilized in analyzing physical health care when evaluating the adequacy of mental health care. See, e.g., Doty, 37 F.3d at 546; Cody, 599 F.Supp. at 1058 (adequacy of mental health care system \"is governed by the same constitutional standard which applies when determining the adequacy of a prison's medical ... system”). . To the extent that other inmates not falling within these categories may develop a serious mental illness in response to conditions in the SHU, an adequate mental health care system should provide sufficient monitoring to be alert to such occurrences and have the ability to address them. See section II(A)(C)(2), supra. . Notwithstanding the above authority, defendants make the novel argument" }, { "docid": "19719535", "title": "", "text": "Id. at 348, 101 S.Ct. at 2400. In Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2323-24, 115 L.Ed.2d 271 (1991), the Court described the holding of Rhodes: The Constitution, we said, “does not mandate comfortable prisons,” and only those deprivations denying “the minimal civilized measure of life’s necessities,” are sufficiently grave to form the basis of an Eighth Amendment violation. Our holding in Rhodes turned on the objective component of an Eighth Amendment prison claim (Was the deprivation sufficiently serious?), and we did not consider the subjective component (Did the officials act with a sufficiently culpable state of mind?). ' Id. at 298, 111 S.Ct. at 2324 (citations omitted). The Wilson court further explained: Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets. Id. at 304, 111 S.Ct. at 2327 (emphasis in original). We must determine whether it was clearly established in 1992 that a prison official who failed to repair a malfunctioning oven door created a sufficiently serious deprivation of a human need to violate the Eighth Amendment. Appellants’ failure to repair the oven put at issue appellee’s need for personal safety. In Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir.1985) (citations omitted), the court wrote: Persons involuntarily confined by the state have a constitutional right to safe conditions of confinement. Not every deviation from ideally safe conditions amounts to a constitutional violation. However, the Eighth Amendment entitles inmates in a penal institution to an adequate level of personal safety. The Hoptomt court affirmed that the following combination of conditions was sufficiently serious to support a finding of a violation of the Eighth Amendment: serious safety hazards found in occupational areas exacerbated by the inadequate lighting, which seriously threatened the safety and security of inmates. Id. No cases in this circuit clearly established that" }, { "docid": "6676392", "title": "", "text": "of programs are not Eighth Amendment violations.” Hoptowit v. Ray, 682 F.2d 1237, 1254 (9th Cir.1982). Programming and prison work are “desirable aids to rehabilitation” the delay of which does not implicate the eighth amendment. Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400; Hoptowit, 682 F.2d at 1255. The court concludes that the complaints of boredom, frustration and hostility arising out of the idleness of PC inmates do not amount to eighth amendment violations. A further component of plaintiffs’ complaint is the extent to which PC inmates are segregated from one another. Before proceeding the court notes that, given the amount of yelling back and forth between PC inmates, the separation experienced by plaintiffs is not absolute segregation, or even segregation in a strict sense. In situations of even more considerable segregation courts have exhibited “a widely shared disinclination to declare even very lengthy periods of segregated confinement beyond the pale of minimally civilized conduct on the part of prison authorities.” Jackson, 699 F.2d at 583; see. Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir.1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). This court concludes that 22 hours of in-cell time and separation does not amount to an eighth amendment violation. Cf. DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir.1988) (eighth amendment requires five hours of exercise a week); Anderson v. Coughlin, 757 F.2d 33, 35-36 (2d Cir.1985) (one exercise hour a day passes eighth amendment muster); Albro v. County of Onondaga, 681 F.Supp. 991, 995 (N.D.N.Y.1988) (detainees are to be provided at least one hour of exercise each day). The First Circuit has cautioned that an eighth amendment violation from psychological deterioration is more likely when the facts presented demonstrate “the threat of substantial, serious and possibly irreversible if not critical psychological illness together with prolonged or indefinite segregated confinement.” Jackson, 699 F.2d at 584-85. With one exception, the court finds that plaintiffs have not met their burden of demonstrating that the deterioration complained of at trial reached the “substantial," }, { "docid": "17159090", "title": "", "text": "of health care issues has enabled them to become increasingly knowledgeable of both plaintiffs health care needs and of defendants’ obligations under the U.S. Constitution. Defendants have failed despite these years of opportunity, encouragement, and coercion to comply with the court’s orders and establish a constitutional system of prison health care. 304. Defendants act with deliberate indifference because they are not responsive to the plaintiff class’ known needs or when they deny, delay or interfere with prescribed health care due to systemic mismanagement of resources. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; DesRosiers, supra. The vast majority of the testimonies reveal that the defendants know and understand plaintiff class’ need for adequate and basic health care but continue nonetheless to deny or delay said care wantonly and deliberately due greatly to systemic failures. 305. The combination of individualized and systemic health care conditions amount to a deprivation of prisoners’ rights pursuant to applicable constitutional provisions. The Supreme Court clarified that although some conditions of confinement alone could not amount to a deprivation of constitutional rights, others may establish an Eighth Amendment violation “ ‘in combination’ when each would not do so alone.” Wilson, 501 U.S. at 304, 111 S.Ct. 2321. Conditions of confinement “in combination” may support a finding of constitutional violation when the conditions “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise ... Id. For instance, placing a schizophrenic inmate in a badly overcrowded cell amounts to a “recipe for an explosion” and “death”. Cortes-Quinones v. Jimenez Nettleship, 842 F.2d 556, 558-560 (1st Cir.1988), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988)(Cories-Qm-nones). 306. Similarly, defendants’ lack of adequate organization and control in the administration of health services has been noted by the Court of Appeals for the First Circuit in Miranda, 770 F.2d at 261, fn. 4: “This is not a case in which it is inconsistent to find liability on the part of both the local prison officials and the central prison administration. A jury could have found that it" }, { "docid": "18575210", "title": "", "text": "was not as harmful as a whipping or electrical shock; nonetheless, the pain inflicted was sufficient to violate the Eighth Amendment given, inter alia, the absence of any legitimate penological interest, and defendant’s callous refusal to provide the hats and gloves although they were readily available. 800 F.Supp. at 800. . Such measures may also have negative effects on security as well. For example, training materials for the CDC Correctional Training Center observe that \"isolation of semi-sensoiy deprivation [sic]” and \"dehumanizing incarceration” are two factors, among others, that increase violence by inmates. Trial Exh. P-3021. However, absent constitutional violations, it is for prison officials to determine what measures provide the best overall security for the prison. . See also Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978) (length of confinement relevant to deciding whether confinement meets constitutional standards); Young, 960 F.2d at 364 (“The duration and conditions of segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards.”); Sheley, 833 F.2d at 1429 (although the court has “been hesitant in the past to apply the Eighth Amendment to claims of physical and mental deterioration by prisoners in the general prison population ... [the plaintiff’s] twelve-year confinement in [solitary confinement] raises serious constitutional questions”); Pepperling v. Crist, 678 F.2d 787, 789 (9th Cir.1982) (“The deprivations associated with an institutional lock-up, including twenty-four hour confinement, and curtailment of all association, exercise and normal vocational and educational activity, may constitute a ... violation of the Eighth Amendment, if they persist too long.”). . See, e.g., Smith v. Coughlin, 748 F.2d 783, 787 (2nd Cir.1984) (district court found that plaintiff was not suffering from any psychological damage as a result of conditions of confinement); Sostre v. McGinnis, 442 F.2d 178, 193 n. 24 (2nd Cir.1971) (no evidence of psychological injury to the health of the prisoner), cert. denied, 404, 405 U.S. 1049, 978, 92 S.Ct. 719, 1190, 30, 31 L.Ed.2d 740, 254 (1972); Bruscino v. Carlson, 654 F.Supp. 609, 621 (S.D.Ill.1987) (evidence presented did not support plaintiffs' claims regarding the mental effects of challenged" }, { "docid": "2303145", "title": "", "text": "and Sostre v. McGin-nis, 442 F.2d 178 (2nd Cir. 1971) (en banc), cert denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). In these cases, as well as in the instant case, the segregated area was not overcrowded or unsanitary. Inmates had some reading materials and an opportunity to exercise. “Seconds” at meals were not available and food was occasionally cold, but it was the same food as that served to the general prison population. Appellants have not contended that access to medical care, bedding or heating was insufficient or that the nutritional value of the food was inadequate; such factors are frequently crucial to a finding of cruel and unusual punishment. Inactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment even if they continue for an indefinite period of time, although the duration “is a factor to be considered, especially if the confinement is punitive.” Sweet, supra, 529 F.2d 854, 861. Expert testimony that such segregation could cause psychological harm is not determinative. Sostre, supra, 442 F.2d 178, 190-193. Since the district court has ordered periodic review of the reasons why an inmate is held in the Control Unit, and the results of such a review may be appealed to the district court, we do not feel that the indefinite nature of the administrative segregation in this case constitutes cruel and unusual punishment. Appellants claim that the conditions successfully challenged in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) “mirror the conditions of life in the Marion Control Unit in many respects,” but the only similarity which exists is the indefinite nature of the confinement in both cases. In Hutto, the Supreme Court upheld the district court’s order which limited the time an inmate could be confined in “punitive isolation” to 30 days. In doing so, the Court specifically noted the “interdependence” of the conditions at the prison, the prior unheeded district court orders to remedy constitutional violations and the severity of" }, { "docid": "18574981", "title": "", "text": "determine whether the infliction of pain was “unnecessary and wanton.” Jordan v. Gardner, 986 F.2d 1521, 1525-28 (9th Cir.1993) (en banc). In considering whether the objective component has been met, the Court must focus on discrete and essential human needs such as health, safety, food, warmth or exercise. Wilson, 501 U.S. at 304, 111 S.Ct. at 2327. “Courts may not find Eighth Amendment violations based on the ‘totality of conditions’ at a prison.” Hoptowit, 682 F.2d at 1246 (quoting Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir.1981)). Thus, while courts may consider conditions in combination “when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need ...[,] [n]othing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” Wilson, 501 U.S. at 304-05, 111 S.Ct. at 2327. The question whether the objective component of an Eighth Amendment claim has been met presents an issue of law for the court to decide. Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir.1993). In contrast, the state of mind inquiry presents a question of fact, and is “subject to demonstration in the usual ways, including inference from circumstantial evidence.” Farmer, — U.S. at —, 114 S.Ct. at 1981. For most Eighth Amendment claims, the plaintiff satisfies the culpability requirement by proving that the defendants’ actions (or omissions) constitute “deliberate indifference.” This “baseline” standard, Jordan, 986 F.2d at 1527, applies in cases alleging inadequate protection from injury from other inmates or inhumane conditions of confinement that deprive an inmate of a basic necessity of life, such as shelter, food, health or exercise. See Farmer, — U.S. at —, 114 S.Ct. at 1977; Jordan, 986 F.2d at 1528. As the Supreme Court recently clarified, the test for determining “deliberate indifference” is essentially equivalent to the standard for establishing subjective recklessness in criminal cases. Farmer, — U.S. at —, 114 S.Ct. at 1980. Thus, the plaintiff must show that: the [prison] official knows of and disregards an excessive risk to inmate health or safety;" } ]

[ { "docid": "1042605", "title": "", "text": "and relatives who had also been drinking, attacked him, punching him twice in the face. Presented with these facts, a jury could have concluded that Jackson — who was under no legal obligation to retreat if he thought Brown was about to rob him— believed that simply striking back or announcing that he had a gun would not have prevented the robbery and that he was required to use his weapon. The jury also could have found that, under these circumstances, a reasonable person would have come to the same conclusion. Because Jackson was clearly entitled to a justification instruction pursuant to a robbery theory, N.Y. Penal Law § 35.15(2), the Appellate Division erred in concluding that “no reasonable view of the evidence supports a justification charge.” People v. Jackson, 266 A.D.2d at 476, 698 N.Y.S.2d 887 (1999). B. Did the failure to give the requested charge result in a denial of due process? Having identified an error of state law, we are now required to consider whether there was a violation of federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The inquiry is whether the trial court’s refusal to give the justification instruction “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). This occurs when the denial of a justification instruction was “sufficiently harmful to make the conviction unfair.” Davis, 270 F.3d at 124; see also Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir.1995) (asking whether trial court’s refusal to give requested instruction rendered the trial “fundamentally unfair”); Means v. Solem, 646 F.2d 322, 332 (8th Cir.1980) (granting habeas relief where trial court’s refusal to instruct the jury on self-defense was an error of “constitutional magnitude”). In Davis, we held that the trial court’s failure to give a justification instruction in the petitioner’s trial for second degree murder violated due process and entitled the petitioner to habeas relief because the omission was nothing less than “catastrophic.” 270 F.3d at 132. The error" } ]

[ { "docid": "23053345", "title": "", "text": "addition, the decision must be supported by some evidence. Id. In this appeal, Mr. Wilson contends that: (a) requiring state-court exhaustion in this type of habeas appeal is futile; (b) his Class X misconduct conviction inevitably affected the length of his sentence and thus infringed a liberty interest; and (c) no evidence supported that conviction. As a result, he concludes, prison officials violated his due process rights. Each of these issues involves questions of law, and our review is thus de novo. See Gamble, 375 F.3d at 1027 (sufficiency of the evidence); Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir.2000) (exhaustion); Harper v. Young, 64 F.3d 563, 566 (10th Cir.1995) (existence of a liberty interest). For the reasons set forth below, we are persuaded by Mr. Wilson’s arguments as to all three issues. A. Exhaustion of Remedies A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally-required to exhaust state remedies. Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000). However, that requirement is not applicable when the prisoner has no adequate remedy such that exhaustion would be futile. Gamble, 375 F.3d at 1026. In Gamble, we explained that a prisoner “seeking speedier ... release due to alleged errors in calculating earned or good-time credits does not have an adequate habeas remedy under Oklahoma law, and that requiring state exhaustion would be futile.\" Id. at 1026 (citing Wallace v. Cody, 951 F.2d 1170, 1172 (10th Cir.1991)). Moreover, prisoners in Oklahoma cannot file a direct judicial appeal to the state courts challenging a disciplinary board decision regarding their earned-credit status. Id. (citing Canady v. Reynolds, 880 P.2d 391, 396-97 & n. 4 (Okla.Crim.App.1994)). As a result, we concluded that the prisoners there were not required to seek relief in state court, and we therefore proceeded to the merits of their due process claims. Here, the State conceded during oral argument that Mr. Wilson has exhausted his administrative remedies, and in its briefs, argued only that Mr. Wilson had not exhausted his state-court remedies. Because of our holding in Gamble that requiring state exhaustion is “futile,” Mr. Wilson has" }, { "docid": "14538506", "title": "", "text": "563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). 1. Due process and evidentiary matters Frazier’s first contention is that the trial court improperly admitted (1) cumulative, gruesome photographs of Skiba’s corpse, (2) evidence that Skiba was terrified of Frazier, and (3) evidence that Frazier raped Skiba. To the extent that this is a challenge to the technical correctness of these evidentiary rulings, we lack authority to consider the challenge. Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir.2001) (“A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner’s due process rights.”). Rather, Frazier must demonstrate that the state court’s conclusion— that the admission of the challenged evidence did not violate his due process rights — -was unreasonable, as those rights have been articulated by the Supreme Court. Frazier argues that the admission into evidence of multiple photographs of Skiba’s corpse was excessive. He notes that the Supreme Court has stated: “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The Ohio Supreme Court directly addressed this evidentiary issue, concluding that the multiple photographs “were introduced during the coroner’s testimony to illustrate the testimony,” that “[e]ach photograph presents a different perspective of the victim,” and that the photographs “were used to illustrate” the nature of the encounter that immediately preceded Skiba’s death. State v. Frasier, 73 Ohio St.3d 323, 652 N.E.2d 1000, 1010 (1995). It ultimately determined that the photographs’ “probative value substantially outweigh[ed] the danger of unfair prejudice” to Frazier. Id. We conclude that the Ohio Supreme Court’s resolution of Frazier’s federal constitutional claim concerning the admission of multiple photographs of Skiba’s corpse was not an unreasonable application of federal law as articulated by the Supreme Court. See Willingham v. Mullin, 296 F.3d 917, 928-29 (10th Cir.2002) (refusing to grant relief on a habeas petitioner’s claim that the" }, { "docid": "15688425", "title": "", "text": "v. Mississippi, 494 U.S. 738, 746-47, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (citing Hides v. Oklahoma, 447 U.S. 343, 346-47, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980)). . See Arthur v. Bordenkircher, 715 F.2d 118, 120 (4th Cir.1983); United States v. Williams, 568 F.2d 464, 471 (5th Cir.1978). . Powell also claims this evidence is best characterized as \"victim impact” evidence, inadmissible during the guilt determination phase of trial. The Supreme Court of Virginia found this argument procedurally barred on direct appeal, as Powell failed to raise it at trial. Powell, 590 S.E.2d at 557 n. 11. A federal habeas court may not, therefore, consider this argument under § 2254 unless there is cause and prejudice shown with respect to the default. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Powell makes no such showing. . Nor does Powell's cited authority support the result he seeks. Although the cases acknowledge the principle that erroneous admission of evidence can rise to a federal constitutional violation, not one of those cases found that an error of constitutional magnitude occurred. See Estelle v. McGuire, 502 U.S. 62, 70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (declining to reach the question whether “it is a violation of the due process guaranteed by the Fourteenth Amendment for evidence that is not relevant to be received in a criminal trial”); Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (recognizing that where \"evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief,” but finding no such unfairness in the present case); Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir.2005) (same); Burket, 208 F.3d at 186 (same); Turrentine v. Mullin, 390 F.3d 1181, 1201 (10th Cir.2004) (same); Janecka v. Cockrell, 301 F.3d 316, 328-29 (5th Cir.2002) (same). . Powell also makes two closely related claims concerning this questioning. Because these claims were found procedurally defaulted by the Supreme Court of Virginia, they are discussed infra" }, { "docid": "2689914", "title": "", "text": "claims: (1) Oklahoma failed to present sufficient evidence to sustain his first degree murder conviction; (2) The jury should have received instructions on the lesser-included offenses of second degree murder and first degree manslaughter; (3) Counsel was ineffective in failing to present testimony from a crime-scene recon-structionist that would have disputed the state’s claim that Young must have fired the shot that killed Sutton; and (4) Counsel was ineffective during the sentencing stage of the trial in failing to proffer certain mitigation evidence. We granted Young a COA on an additional issue: Whether witness testimony identifying Young as the assailant was improperly admitted due to law enforcement’s use of a flawed identification procedure. II The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), governs our review of Young’s petition, and provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). When a petitioner seeks relief under the first prong of AED-PA we first ask whether the “principle of federal law invoked by the petitioner was clearly established by the Supreme Court at the time of the state court judgment.” Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th Cir.2004). 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.” Torres v. Lytle, 461 F.3d 1303, 1311 (10th Cir.2006) [hereinafter “Torres II" }, { "docid": "14139865", "title": "", "text": "federal habeas review. Accordingly, Delgadillo challenges the admission of Ramirez’s out-of-court statements as violating the criteria for admissibility set forth in Ohio v. Roberts, arguing that Ramirez’s statements do not bear “adequate ‘indicia of reliability.’ ” 448 U.S. at 66, 100 S.Ct. 2531. Because Crawford rejected this framework for analyzing Confrontation Clause violations, see Whorton, 127 S.Ct. at 1183, such arguments are irrelevant unless Ohio v. Roberts applies to Delgadillo’s claims. B Before reaching the merits of Delgadillo’s Confrontation Clause claims, however, we must consider the applicability of AEDPA, 28 U.S.C. § 2254, which establishes a “highly deferential standard for evaluating state-court rulings.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). Under AEDPA, we must defer to the state court’s resolution of federal claims unless its determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also, e.g., Himes v. Thompson, 336 F.3d 848, 852 (9th Cir.2003). “ ‘[C]learly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Only if the state court’s decision does not meet the criteria set forth in § 2254(d)(1) do we conduct a de novo review of a habeas petitioner’s claims. See Panetti v. Quarterman, — U.S. —, 127 S.Ct. 2842, 2855, 168 L.Ed.2d 662 (2007) (holding that where the state court’s application of Supreme Court precedent was unreasonable, the federal court may review petitioner’s claim “unencumbered by the deference AEDPA normally requires”); see also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir.2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). The" }, { "docid": "7071047", "title": "", "text": "at closing pales in comparison to the physical and testimonial evidence of guilt introduced at trial. Likewise, the omission of a victim impact instruction in the context of the instructions as a whole also could only have minimally affected the jury’s consideration of the aggravated nature of the quadruple homicide. Moreover, the victim impact evidence bore on only two of the four aggravating circumstances found by the jury, any one of which was sufficient to support the death penalty. Even together, the weight of these alleged errors did not rob Hamilton of a fair trial. We thus conclude Hamilton has failed to establish that individual harmless errors should collectively justify habeas relief. IV. Conclusion Accordingly, for the reasons set forth above, we AFFIRM the district court’s decision denying Mr. Hamilton’s 28 U.S.C. § 2254 petition for a writ of habeas corpus. . At oral argument, Hamilton's counsel stated that the excluded evidence also violated his right to present mitigating circumstances under the Supreme Court's holding allowing such evidence. See Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1, (1986). This claim fails for the same reasons as Hamilton's life without parol argument. . At the federal district court level, Hamilton argued that the inflammatory nature of the victim impact testimony violated his due process rights under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct 2597, 115 L.Ed.2d 720 (1991). The district court found (1) the claim was procedurally barred, and (2) Hamilton had not asserted sufficient grounds to excuse that bar. On appeal, Hamilton does not challenge the district court’s determinations concerning the applicability of the procedural bar. Instead he simply reasserts the claim that the substance of the evidence violated the Constitution. To the extent Hamilton seeks to have us review the constitutionality of the substance of the admitted evidence, we are precluded from doing so. See Turrentine v. Mullin, 390 F.3d 1181, 1206 (10th Cir.2004) (“Generally, where a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is" }, { "docid": "23239630", "title": "", "text": "to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.” Id. If this Court’s decision in Lofton were controlling, Mr. Bland might well be entitled to relief. Under the AEDPA standard of review, however, a habeas petition shall not be granted unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). The decisions of lower federal courts applying Supreme Court precedent are not determinative, see Williams, 529 U.S. at 406, 120 S.Ct. 1495, and in this case the lower federal courts have in fact divided as to the proper scope of Mullaney after Patterson. Compare Lofton, 776 F.2d at 920-21, with Molina-Uribe, 853 F.2d at 1203-04. Because the OCCA’s decision reasonably applies the correct legal rule from Mullaney, as the Supreme Court construed that rule in Patterson, the OCCA decision is neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, notwithstanding the interpretation of that rule in this Circuit. 3. Prosecutorial Misstatements We turn now to Mr. Bland’s argument that the prosecutors misstated the jury instruction regarding the lesser included offense, and thus violated due process. To prevail on a claim based on improper remarks by the prosecutor, a petitioner generally must demonstrate that the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also Le v. Mullin, 311 F.3d 1002, 1013, 1018 (10th Cir.2002) (requiring a showing that the trial was “fundamentally unfair” where the prosecutor’s comments appeared to contradict the jury instructions). Because the OCCA considered this claim, AEDPA standards of review apply, and we may reverse only if the OCCA’s decision was “legally or factually unreasonable.” Gip-son v. Jordan, 376 F.3d 1193, 1197 (10th Cir.2004) (internal quotation marks omitted). During closing argument, the prosecution argued that the jury need not consider the lesser included offense of first-degree" }, { "docid": "2226776", "title": "", "text": "done,” did not render the proceeding fundamentally unfair); Cargle v. Mullin, 317 F.3d 1196, 1223-24 (10th Cir.2003) (lengthy and emotional statement from victim’s sister and photographs of the victims while they were alive not unduly prejudicial). The victim impact statements here contained only a few short references to the victim’s childhood. Overall, the statements were very brief, and while a person sitting in the courtroom broke down into tears, there is no evidence that either witness exhibited such an emotionally charged display as might be unduly prejudicial. Compare with Chanthadara, 230 F.3d at 1274. We cannot conclude that “[t]he irrelevant testimony regarding Mrs. Yost’s enjoyment of cooking and ironing for the victim and involving Mr. Yost’s childhood could ... have influenced the jury’s finding” as to the aggravating factors, Brown, 515 F.3d at 1095, nor could it have prevented the jury from considering the mitigating evidence, see Short, 472 F.3d at 1195. The OCCA’s application was neither contrary to, nor an unreasonable application of, Payne, so we deny habeas relief on this issue. VII. Claims Relevant to Both Stages A. Introduction of Irrelevant, Cumulative and Prejudicial Evidence Mr. Wilson alleges that his constitutional rights guaranteed by the Eighth and Fourteenth Amendments were violated because of the introduction of irrelevant, cumulative, and prejudicial evidence, including gruesome photographs, videos of the crime scene, and weapons. “Federal habeas review is not available to correct state law evidentiary errors; rather, it is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). When the habeas petitioner argues that evidence violated the Constitution, we consider “whether the admission of evidence ... so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). The “Due Process Clause of the Fourteenth Amendment provides a mechanism for relief’ when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally" }, { "docid": "7071025", "title": "", "text": "of Oklahoma bore the burden of proof beyond a reasonable doubt. The statements here are closer to the facts of Mahomey, where we considered whether the presence of a jury instruction on the presumption of innocence mitigated the prejudice of improper prosecutorial comments. There, we determined that prejudice persisted despite the instruction because “the trial court’s overall charge on the presumption of innocence and burden of proof was not sufficiently specific to preserve that presumption in light of the prosecutor’s specific statement that it had been extinguished from the case.” Mahorney, 917 F.2d at 473-74. We need not reach the same conclusion in this context, however. Even if there were a due process violation, as with any constitutional error, we must still review for harmlessness. See Pickens, 206 F.3d at 998. The OCCA considered the circumstances at trial and determined that any error was harmless beyond a reasonable doubt due to the “overwhelming uncontra-dicted evidence of guilt[.]” Hamilton, 937 P.2d at 1010. We agree. On this record, the evidence against Hamilton is substantial. A number of eyewitnesses placed Hamilton in the getaway car. A co-conspirator identified Hamilton as the shooter. The car and murder weapon were recovered next to Hamilton’s apartment. Accordingly, we cannot conclude the OCCA misapplied federal law in determining that the error was harmless beyond a reasonable doubt. See Spears v. Mullin, 343 F.3d 1215, 1232-33 n. 14 (10th Cir.2003) (In a federal habeas proceeding where a state court applied the harmless-beyond-a-reasonable-doubt standard set forth in Chapman, 386 U.S. at 24, 87 S.Ct. 824, “we must decide whether the state court’s finding of harmless error was contrary to or an unreasonable application of Chapman ”). In sum, Hamilton is not entitled to habe-as relief based on statements made during the prosecutor’s closing argument. B. Life Without Parole Under Oklahoma law, a prisoner sentenced to life without parole is not entitled to be released from prison. Hamilton argues the state trial court violated his right to due process at sentencing by denying his requests (1) to allow witness testimony, and (2) to submit an instruction explaining to the" }, { "docid": "2226641", "title": "", "text": "of victim impact evidence; (12) ineffective assistance of counsel; (13) application of the continuing threat aggravator and the constitutionality of the continuing threat ag-gravator; and (14) the cumulative impact of the errors on Mr. Wilson’s rights. II. Standard of Review Mr. Wilson filed his habeas corpus petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, AEDPA’s standards apply to all claims adjudicated on the merits in state court proceedings. Under AEDPA, a writ of habeas corpus will not be granted unless the state court’s adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(l)-(2); Turrentine v. Mullin, 390 F.3d 1181, 1188 (10th Cir.2004). We must presume that the state court’s factual findings are correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir.2004) (quoting Smallwood v. Gibson, 191 F.3d 1257, 1264-65 (10th Cir.1999)). The district court’s legal analysis is reviewed de novo and any factual findings are reviewed for clear error. Turrentine, 390 F.3d at 1189; Smallwood, 191 F.3d at 1264-65. A state court decision is “contrary” to clearly established law “if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court decision is an “unreasonable application” of clearly established law when the state court “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471" }, { "docid": "23239613", "title": "", "text": "to submit an instruction on the offense of ‘manslaughter by resisting criminal [attempt]’ ”; and (2) whether the district court should have granted an evidentiary hearing on whether Mr. Bland was denied the effective assistance of counsel. Case Mgmt. Order, Mar. 17, 2005, at 1-2; Br. of Pet./Aplt. Attach. 6. II. Standard of Review Because Mr. Bland filed his habeas corpus petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its standards apply to claims in this appeal adjudicated on the merits by the state courts. See Turren-tine v. Mullin, 390 F.3d 1181, 1188 (10th Cir.2004); Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999). Under AED-PA, a petitioner is entitled to federal habe-as relief only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In evaluating a state prisoner’s habeas petition, we presume that the factual findings of the state court are correct and place the burden on the petitioner to rebut that presumption by clear and convincing evidence. Id. § 2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir.2004). We review the district court’s legal analysis of the state court decision de novo. Turrentine, 390 F.3d at 1189. In applying § 2254(d), we first determine whether the principle of federal law on which the petitioner’s claim is based was clearly established by the Supreme Court at the time of the state court judgment. Id. If so, we then consider whether the state court decision was “contrary to” or an “unreasonable application of’ that clearly established federal law. A decision is “contrary to” clearly established federal law for purposes of § 2254 if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if “the state court confronts a set of facts that are materially indistinguishable from a decision" }, { "docid": "22821115", "title": "", "text": "time of the relevant state-court decision”) (citations and quotations omitted). Thus, “an absolute prerequisite for [a habeas petitioner’s] claim is that the asserted constitutional right on which it rests derive in clear fashion from Supreme Court precedent.” Carter, 347 F.3d at 863 (citing Anderson, 327 F.3d at 1153). Even relevant precedent of this circuit cannot prevail absent clear Supreme Court authority. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.2003) (noting that habeas petitioner “cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent”); Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir.1997) (noting that, under AEDPA, “We may no longer rely upon our own precedent to grant a writ of habeas corpus”). In sum, we may only grant relief under § 2254(d) if we can say, with confidence, that the OCCA’s decision unreasonably applied clearly established Supreme Court law to the facts of this case. If, however, the OCCA’s decision is an objectively reasonable application of Supreme Court law, then relief “shall not be granted,” 28 U.S.C. 2254(d)(1), even if we would have reached a different result under our own independent review. See, e.g., Elliott v. Williams, 248 F.3d 1205, 1207 (10th Cir.2001). With this standard of review in mind, we consider Parker’s specific due process and ineffective assistance of counsel claims. • III. DUE PROCESS The main thrust of Parker’s due process claims are a series of rulings by the trial court that he claims violated his right to due process of law. Specifically, he claims that the trial court made the following errors: (A) allowing testimony from Dr. Inhoffe, Mr. Lovett, and Corporal Berry that impermissibly bolstered, or “vouched” for, the child’s credibility by setting forth the witnesses’ belief in the accuracy of the child’s statements; (B) allowing testimony from the child victim that was unbelievable as a matter of law; (C) denying a mid-trial document request; and (D) giving a jury instruction that omitted an element of the offense. Each of Parker’s due process claims are considered below. A. The prosecution witnesses did not violate Parker’s Due Process rights" }, { "docid": "2689916", "title": "", "text": "”]. A decision is an “unreasonable application” of clearly established federal law only “if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. We do not apply AEDPA’s deferential review standard when a federal district court holds an evidentiary hearing and considers new evidence that was not before the state court at the time it reached its decision, even if the state court resolved the claim on the merits. Id. (citing Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir.2003) (en banc)). When a petitioner seeks relief under the second prong of AEDPA, the petitioner bears the burden of showing by clear and convincing evidence that the state court’s factual determination is erroneous. 28 U.S.C. § 2254(e)(1); Turrentine, 390 F.3d at 1188-89. We review the district court’s application of AEDPA’s standards de novo. Goss v. Nelson, 439 F.3d 621, 626 (10th Cir .2006). “If the state court did not decide a claim on the merits, and it is not otherwise procedurally barred, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error.” Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir.2003) (citation omitted). However, “when ... the district court’s findings of fact are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review.” Id. (quotation omitted); see also Turrentine, 390 F.3d at 1189. As we embark upon our review of Young’s petition, we are mindful that “our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.” Mitchell v. Gibson, 262 F.3d 1036, 1063 (10th Cir.2001) (citation omitted). Ill Young argues that admission of a witness’ in-court identification of Young as one of the individuals who attempted to rob the Steak House violated his Fourteenth Amendment due process rights and Sixth Amendment right under the Confrontation Clause. He raises two distinct challenges. First, he argues that it" }, { "docid": "14408265", "title": "", "text": "... so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); see also Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of [sentencing].”); Smallwood, 191 F.3d at 1275 (examining “whether the admission of the photographs rendered the proceedings fundamentally unfair”); Willingham, 296 F.3d at 928 (addressing whether admission of photographs was “so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process” (quotation omitted)). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (quotations omitted); see also Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.) (recognizing that only a narrow category of infractions violates fundamental fairness), cert, denied, 537 U.S. 1093, 123 S.Ct. 703, 154 L.Ed.2d 640 (2002); Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.1998) (approaching fundamental-fairness analysis with “considerable self-restraint” (quotation omitted)). Although there are no clearly defined legal elements, the fundamental-fairness inquiry requires us to look at the effect of the admission of the photographs within the context of the entire second stage. See Duckett, 306 F.3d at 988. We consider the relevance of the photographs and the strength of the aggravating evidence against Spears and Powell as compared to the mitigating evidence in their favor and decide whether admission of the photographs could have given the State an unfair advantage. Ultimately, we consider whether the jury could judge the evidence fairly in light of the admission of the photographs. See id. at 989. Applying this fundamental-fairness standard and mindful of the standards of review set forth by AEDPA, we conclude that the federal district court appropriately granted habeas relief. In" }, { "docid": "11531747", "title": "", "text": "637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); and (2) that permitting the State not to disclose such a witness violated due-process principles articulated in Wardius v. Oregon, 412 U.S. 470, 475, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (“[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.”). The OCCA held that Busby’s testimony was admissible, stating that it “was relevant to refute Defendant’s claims made for the first time during his trial testimony concerning the manner and locations of the knife attack that were different than his pre-trial statements.” Davis, 103 P.3d at 77. The district court agreed, reasoning that the state was previously unaware of the version presented at trial. We agree that AEDPA requires affirmance. First, the Oklahoma notice requirement did not create a federal due-process right. See Elliott v. Martinez, 675 F.3d 1241, 1244-45 (10th Cir.2012) (a state-created procedural right is not a liberty interest protected under the Constitution’s Due Process Clause). Therefore, even if the state rule was violated, Defendant cannot obtain relief on that ground under § 2254, which limits review to claims based on federal law. See Turrentine v. Mullin, 390 F.3d 1181, 1195-96 (10th Cir.2004) (“[A] federal court under § 2254 may not grant relief unless there was an error of federal law, in other words, unless this error amounted to a violation of the federal constitution.”). Second, there is nothing so unfair as to violate due process in permitting the government to put on a rebuttal witness to challenge defense testimony that could not be anticipated before trial. And Defendant has cited no Supreme Court decision suggesting that such a rebuttal witness must be disclosed before trial. Wardius, which dealt with a notice-of-alibi rule, did not address rebuttal testimony. Defendant argues that the OCCA unreasonably determined the facts in saying that his testimony could not have been reasonably anticipated and" }, { "docid": "2226827", "title": "", "text": "appropriate question is whether [petitioner] was entitled to a hearing under pre-AEDPA law”), with Schriro, 127 S.Ct. at 1940 (concluding that even though petitioner was diligent, “[b]e-cause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate”). Whether the state court adjudicated petitioner’s claim on the merits — not whether petitioner was diligent — guides our standard of review. See 28 U.S.C. § 2254(d); Schriro, 127 S.Ct. at 1939-44 & n. 1; Turrentine v. Mullin, 390 F.3d 1181, 1188-89 (10th Cir.2004) (quoting 28 U.S.C. § 2254(d)(1) and (d)(2)). Wilson’s claim of ineffective assistance was adjudicated on the merits in Oklahoma state court. “An adjudication on the merits occurs when the state court resolves the case on substantive grounds, rather than procedural grounds.” Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001) (internal quotation marks omitted); see also Harris v. Poppell, 411 F.3d 1189, 1195-96 (10th Cir.2005) (noting “[wjhere there is no indication ... the state court did not reach the merits of a claim, we have held that a state court reaches a decision ‘on the merits’ ” (quotation omitted)). The Oklahoma Court of Criminal Appeals (OCCA) concluded Wilson could not show his trial counsel’s performance was deficient or prejudicial under the Supreme Court’s precedent in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Wilson v. State, 983 P.2d 448, 471-72 (Okla.Crim.App.1998). The OCCA’s decision was based on substantive, rather than procedural, grounds. Id. at 472. Despite this clear holding, the majority applies our Tenth Circuit cases to conclude the decision does not constitute an adjudication on the merits because the OCCA did not consider additional non-record evidence submitted by Wilson. But nothing in the Supreme Court’s precedents or AEDPA’s text supports the position that a decision ceases to be an adjudication on the merits simply because the petitioner has submitted additional evidence to the federal habeas court. As noted above, § 2254 deference applies whether or not the state court held an evidentiary hearing" }, { "docid": "7071026", "title": "", "text": "of eyewitnesses placed Hamilton in the getaway car. A co-conspirator identified Hamilton as the shooter. The car and murder weapon were recovered next to Hamilton’s apartment. Accordingly, we cannot conclude the OCCA misapplied federal law in determining that the error was harmless beyond a reasonable doubt. See Spears v. Mullin, 343 F.3d 1215, 1232-33 n. 14 (10th Cir.2003) (In a federal habeas proceeding where a state court applied the harmless-beyond-a-reasonable-doubt standard set forth in Chapman, 386 U.S. at 24, 87 S.Ct. 824, “we must decide whether the state court’s finding of harmless error was contrary to or an unreasonable application of Chapman ”). In sum, Hamilton is not entitled to habe-as relief based on statements made during the prosecutor’s closing argument. B. Life Without Parole Under Oklahoma law, a prisoner sentenced to life without parole is not entitled to be released from prison. Hamilton argues the state trial court violated his right to due process at sentencing by denying his requests (1) to allow witness testimony, and (2) to submit an instruction explaining to the jury that he would not be parole-eligible. The OCCA rejected the claim on direct appeal. Interpreting the Supreme Court’s holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), which requires juries to be informed about the option of life without parole, the OCCA concluded that defendants have no constitutional right to witness testimony or a jury instruction containing such information. See Hamilton v. State, 937 P.2d at 1011-12 (citing Trice v. State, 912 P.2d 349, 352 (Okla.Crim.App.1996)). Hamilton claims the OCCA’s conclusion is contrary to or represents an unreasonable application of Simmons and more recent Supreme Court cases explaining its holding. We disagree. The Supreme Court in Simmons addressed whether due process required a state trial court “to instruct the jury in the penalty phase of a capital trial that under state law the defendant was ineligible, for parole.” Simmons, 512 U.S. at 156, 114 S.Ct. 2187 (plurality opinion). The Court concluded that due process required such an instruction, but only under narrow circumstances: “[w]here the State puts" }, { "docid": "14408264", "title": "", "text": "each issue before us on appeal. See Darks v. Mullin, 327 F.3d 1001 (10th Cir.2003). Ill A. State’s Appeals The federal district court held that the State’s penalty-phase introduction of crime-scene photographs showing Thompson’s mutilated body deprived Spears and Powell of a fundamentally fair sentencing proceeding as guaranteed by the Eighth and Fourteenth Amendments. On appeal, the State argues that these admittedly gruesome photographs were relevant to both the heinous, atrocious, or cruel and continuing-threat aggravators, that their relevance outweighed any danger of unfair prejudice, and that the photographs were therefore properly admitted in evidence. “Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); see also Willingham v. Mullin, 296 F.3d 917, 928 (10th Cir.2002). When, as here, habeas petitioners challenge the admission of photographic evidence as violative of the Constitution, this court considers “whether the admission of evidence ... so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); see also Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of [sentencing].”); Smallwood, 191 F.3d at 1275 (examining “whether the admission of the photographs rendered the proceedings fundamentally unfair”); Willingham, 296 F.3d at 928 (addressing whether admission of photographs was “so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process” (quotation omitted)). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (quotations omitted); see also Bullock v. Carver, 297" }, { "docid": "14139866", "title": "", "text": "v. Thompson, 336 F.3d 848, 852 (9th Cir.2003). “ ‘[C]learly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Only if the state court’s decision does not meet the criteria set forth in § 2254(d)(1) do we conduct a de novo review of a habeas petitioner’s claims. See Panetti v. Quarterman, — U.S. —, 127 S.Ct. 2842, 2855, 168 L.Ed.2d 662 (2007) (holding that where the state court’s application of Supreme Court precedent was unreasonable, the federal court may review petitioner’s claim “unencumbered by the deference AEDPA normally requires”); see also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir.2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 804-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see Medley v. Runnels, 506 F.3d 857, 862 (9th Cir.2007) (en banc). Here, the March 21, 2005 decision of the state appellate court denying Delgadillo’s second state habeas petition is the last reasoned decision on Delgadillo’s Confrontation Clause claims. Therefore, Delgadillo’s appeal requires us to consider first whether the state habeas court’s application of Crawford to Delgadil-lo’s Confrontation Clause claims is contrary to or an unreasonable application of Supreme Court precedent. The Supreme Court answered this question in the negative in Danforth, which was decided while this appeal was pending. In Danforth, the Supreme Court addressed the question whether a state habeas court is constrained by a federal court determination that, under Teague, a new constitutional rule of criminal procedure is not retroactively applicable on collateral review. The petitioner in Danforth argued on appeal that his Confrontation Clause rights had been violated by the admission" }, { "docid": "2226826", "title": "", "text": "After the enactment of AEDPA, a federal habeas petitioner must show he was diligent in developing the factual basis for his claim in state court (hurdle number one), and that his allegations, if true, would entitle him to habeas relief (hurdle number two). In a case like this, where the state court has decided petitioner’s claim on the merits, this sec ond hurdle is even higher because petitioner must show the state court’s adjudication of his claim involved an unreasonable determination of the facts or unreasonable application of clearly established federal law. The majority relies heavily upon our precedents in Bryan v. Mullin, 335 F.3d 1207, 1215 (10th Cir.2003) (en banc), and Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.1998), to conclude we review Wilson’s ineffective assistance of counsel claim without deference to the state court’s judgment. But to the extent those cases rely on § 2254(e)(2)’s diligence inquiry to determine our standard of review, they are no longer good law. Compare Bryan, 335 F.3d at 1215 (concluding that because petitioner was diligent, “the appropriate question is whether [petitioner] was entitled to a hearing under pre-AEDPA law”), with Schriro, 127 S.Ct. at 1940 (concluding that even though petitioner was diligent, “[b]e-cause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate”). Whether the state court adjudicated petitioner’s claim on the merits — not whether petitioner was diligent — guides our standard of review. See 28 U.S.C. § 2254(d); Schriro, 127 S.Ct. at 1939-44 & n. 1; Turrentine v. Mullin, 390 F.3d 1181, 1188-89 (10th Cir.2004) (quoting 28 U.S.C. § 2254(d)(1) and (d)(2)). Wilson’s claim of ineffective assistance was adjudicated on the merits in Oklahoma state court. “An adjudication on the merits occurs when the state court resolves the case on substantive grounds, rather than procedural grounds.” Valdez v. Cockrell, 274 F.3d 941, 946-47 (5th Cir.2001) (internal quotation marks omitted); see also Harris v. Poppell, 411 F.3d 1189, 1195-96 (10th Cir.2005) (noting “[wjhere there is no indication ... the state" } ]

[ { "docid": "8185111", "title": "", "text": "the courts with respect thereto and also because the district courts are without power to grant writs of mandamus or, in cases such as this, mandatory injunctions, which in such cases are in effect writs of mandamus. Krug v. Fox, 4 Cir., 161 F.2d 1013, 1018-1020; Ains-worth v. Barn Ballroom Co., 4 Cir., 157 F.2d 97, 100-101; Appalachian Electric Power Co. v. Smith, 4 Cir., 67 F.2d 451, 457, certiorari denied 291 U.S. 674, 54 S.Ct. 458, 78 L.Ed. 1063; Wood v. Phillips, 4 Cir., 50 F.2d 714, 717-718; Ferris v. Wilbur, 4 Cir., 27 F.2d 262, 263. In Appalachian Electric Power Co. v. Smith, supra, 67 F.2d at page 457, we stated the applicable rule as follows: “In the first place, the District Courts of the United States are without jurisdiction to issue writs of mandamus to control official action of executive officers of the government even where such writs would lie at common law. Covington & C. Bridge Co. v. Hager, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743; Kendall v. United States, 12 Pet. 524, 618, 9 L.Ed. 1181; McClung v. Silliman, 6 Wheat. 598, 5 L.Ed. 340; Mclntire v. Wood, 7 Crunch, 504, 3 L.Ed. 420. Consequently, even if this suit were treated as an application for mandamus, relief could not be afforded plaintiff. In the second place, any cancellation of orders or expunging of records would necessarily be done by defendants in their official capacity; and suits against them to compel action in their official capacity are suits against the United States, which cannot be maintained as the United States has not consented to be sued.” The jurisdiction of other District Courts of the United States to grant writs of mandamus must be distinguished from the jurisdiction of the United States District Court for the District of Columbia, which is clothed with the common law powers of courts of general jurisdiction of the State of Maryland. Kendall v. United States, supra, 12 Pet. 524, 622-625, 9 L.Ed. 1181. We do not think" } ]

[ { "docid": "15109456", "title": "", "text": "McKAY, Circuit Judge. Plaintiffs brought suit to compel defendants to comply with the Davis-Bacon Act, 40 U.S.C. § 276a et seq., the Service Contract Act of 1965, 41 U.S.C. §§ 351-58, and the regulations promulgated under these Acts, 29 C.F.R. §§ 5-8, 41 C.F.R. §§ 1-12.-900-.905-11. Plaintiffs allege that defendants have failed to perform their duty to prevent violations of these laws. Plaintiffs prayed for a declaratory judgment, mandamus, and permanent and mandatory injunctions, alleging alternative bases of jurisdiction — 28 U.S.C. § 1861 (mandamus) and 28 U.S.C. § 1331 (federal question). The district court concluded that plaintiffs’ complaint was “legally insufficient to make out a case for mandamus,” and that federal question jurisdiction was “barred by the sovereign immunity of the United States.” Record, vol. 1, at 134. The court then dismissed the case for lack of jurisdiction. Plaintiffs assert on appeal that the district court has jurisdiction to compel defendants to perform their statutory and regulatory duties pursuant to the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. “Mandamus relief is appropriate only when the person seeking such relief can show a duty owed to him by the government official to whom the writ is directed that is ministerial, clearly defined and peremptory.” Schulke v. United States, 544 F.2d 453, 455 (10th Cir. 1976). This restatement of the oft-cited ministerial-discretionary dichotomy which permeates the jurisprudence of mandamus is merely shorthand for the well-taken rule that to the extent a statute vests discretion in a public official, his exercise of that discretion should not be controlled by the judiciary. The doctrine of separation of powers precludes the judiciary’s arrogation of authority as a “super agency” controlling or overseeing the discretionary affairs of an agency established to aid one of the other branches of government. On the other hand, it is the court’s duty in a mandamus action to measure the allegations in the complaint against the statutory and constitutional framework to determine whether the particular official actions complained of fall within the scope of the discretion which Congress accorded the administrators .... In other words, even in" }, { "docid": "6718284", "title": "", "text": "Lead Mines Co., D.C.D.Idaho, 45 F.2d 659, supra. The proposition that the District Courts may not issue directions in the nature of mandamus except in aid of jurisdiction already acquired is equally well settled. Insular Police Commission v. Lopez, 1 Cir., 160 F.2d 673, 677, and cases cited. This rule arises from the determination that Congress, by using the words “suits of a civil nature, at common law or in equity” in paragraph (1) of § 24 of the Judicial Code, 28 U.S.C., 1940 ed., § 41(1), withheld power to entertain mandamus proceedings. I would like to be able to say that this inconvenient omission had been supplied when the words were changed in the new Title 28 of the United States Code in section 1332(a) to “all civil actions”. The Reviser’s Note, however, says that those words “were substituted for ‘all suits of a civil nature at common law or in equity’ in order to conform to Rule 2 of the Federal Rules of Civil Procedure.” That rule reads simply “There shall be one form of action to be known as ‘civil action.’ ” I cannot honestly say that I think that it was intended to enlarge the jurisdiction of the District Courts of the United States. Since the application for a mandatory injunction to permit Rosen to examine the stock list is not in aid of jurisdiction already acquired but is an independent subject of relief, I am forced to deny it. The motion for inspection is thus denied. Plaintiffs’ motion for a mandatory injunction requiring the holding of the stockholders’ meeting must be denied. Alleghany’s corporate affairs are now in confusion due to the issuance of an injunction by this court freezing the situation where the proposed exchange of 6% preferred stock for 5%% preferred stock has been in part accomplished. Under the circumstances it is difficult to determine who is entitled to vote at such a meeting. Plaintiffs’ need for having it held is outweighed by the hardship to Alleghany which would result from requiring that it be held. The present refusal of the injunction is" }, { "docid": "16029134", "title": "", "text": "the Independence National Historical Park, so far as it\" relates to Building No. 42, be suspended indefinitely. In that situation of the case, one, encounters the rule that, with reference to relief in the nature of mandamus, the' District Courts of the United States will not do indirectly that which they have no jurisdiction to do directly. Breiner v. Kniskern, D.C.E.D.Pa.1950, 90 F.Supp. 9, 11; Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622, 627; Harris v. Bayer, D.C.E.D., Pa.1955, 18 F.R.D. 392, 393. It therefore seems worth mentioning again that the five cases urged by the plaintiff, in which mandamus or mandatory injunction against the Secretary of the Interior was permitted, were without exception causes which arose in the District of Columbia, whose courts are, unique in the federal system in that — for historical reasons — they retain original jurisdiction to grant the writ of mandamus. Petrowski v. Nutt, 9 Cir., 1947, 161 F.2d 938, 939. II. The only attempt which plaintiffs have made to secure jurisdiction over the persons of the three named defendants was service on defendant, M. O. Anderson, Contract Officer and Superintendent, at the National Park Service office in the City of Philadelphia. As to the defendant, United States Department of the Interior, it seems clear that it is not a suable entity and has not been brought into the case. The Congress has not constituted that Department a body corporate or authorized it to be sued eo nomine. Blackmar v. Guerre, 1952, 342 U.S. 512, 514, 72 S.Ct. 410, 96 L.Ed. 534. Under Federal Rules of Civil Procedure, rule 4(f) and 4(d) (5), 28 U.S.C. it is obvious that defendant, “John” A. Seaton, Secretary of the Department of the Interior, since he has not been served in accordance with the rules,' is not before this Court. Noreen v. Van Dyke, D.C.Minn.1955, 133 F.Supp. 142, 144; Webb v. United States, D.C.E.D. Pa.1957, 21 F.R.D. 251, 254; Bessel v. Clyde, D.C.E.D .Pa., 22 F.R.D. 15. Personal service has been made' on defendant M. O. Anderson alone. It' has not once been alleged that relief is" }, { "docid": "20989466", "title": "", "text": "on the first ground hereinbefore stated. Insofar as the plaintiffs’ complaint seeks a mandatory injunction, this court is without jurisdiction. A'mandatory injunction is in effect equivalent to a writ of mandamus and should be governed by like considerations. Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901; Branham v. Langley, 4 Cir., 139 F.2d 115. As to mandamus, district courts (at least outside of the District of Columbia) have no original jurisdiction to issue such writ or orders in the nature of such writ in the absence of special statutory authority. They may issue such writ only in aid’ of their jurisdiction in cases where such jurisdiction has already been acquired on other grounds. Rule 81(b), Federal Rules of Civil Procedure, 28 U.S.C.A.; 28 U.S.C.A. § 1651; Insular Police Commission v. Lopez, 1 Cir., 160 F.2d 673, 677, and cases cited therein; Petrowski v. Nutt, 9 Cir., 161 F.2d 938. Viewing the plaintiffs’ prayer for a declaratory judgment of their rights, again the court lacks jurisdiction of the cause. The Federal Declaratory Judgments Act, 28 U.S.C.A. § 2201, formerly 28 U.S.C.A. § 400, confers no additional jurisdiction on the district courts but merer ly adds a new procedural device. Atlantic Meat Co. v. Reconstruction Finance Corp., 1 Cir., 166 F.2d 51; Ambassade Realty Corp. v. Winkler, D.C.Mass., 83 F.Supp. 227. It allows a declaration of rights and other legal relations only in a case of actual controversy within the jurisdiction of the United States courts. 28 U.S.C.A. § 2201. In essence this is a petition for a writ of mandamus and, as demonstrated above, not within the original jurisdiction of the district courts. Therefore this complaint, if viewed as asking for a declaratory judgment, must be dismissed. In reaching this conclusion I have noted that the District Court for the District of Oregon has arrived at the same result in Palmer v. Walsh, D.C., 78 F.Supp. 64, opinion by District Judge Driver. See Kohlman v. Smith, D.C., 71 F.Supp. 73. Lacking jurisdiction of this suit for direct relief, the court did not acquire jurisdiction, by virtue of" }, { "docid": "6000976", "title": "", "text": "legislative history that the scope of review granted to the district courts by the enactment of Section 1361 was not more restricted than that which previously existed in the District of Columbia, that the courts are to have more latitude in fashioning relief than would have been permitted had the Congress limited the authority to just issuing “writs of mandamus,” and that “in the nature of mandamus” envisions a power in the district courts to review and compel official action similar to that which had previously been exercised by the District of Columbia District Court. Id., at pp. 318-319. Concerning this scope of review, the Court is also convinced that equity principles, rather than mandamus principles, should govern the courts’ disposition of cases brought under Section 1361, thus drawing a distinction between “mandamus relief” and “mandatory injunctive relief.” See: 3 K. Davis § 23.12. Given this legislative background of Section 1361, the Court is of the opinion that the action at bar is an “action in the nature of mandamus” within the meaning of the statute. “It is . well established that mandamus may be used to correct abuse of discretion by a federal officer, particularly if the abuse constitutes a violation of constitutional rights.” Cortright v. Resor, supra, 325 F.Supp. at p. 812, reversed on other grounds, 447 F.2d 245 (2d Cir. 1971). In accord with this view are: Schatten v. United States, supra; Peoples v. United States Department of Agriculture, supra; National Association of Government Employeees v. White, supra; Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970); Fifth Avenue Peace Committee v. Hoover, 327 F.Supp. 238 (S.D.N.Y.1971); and Murray v. Vaughn, supra (other citations omitted). Therefore, to the extent that the third party plaintiffs allege that the defendant federal officers acted unconstitutionally and outside the ambit of their statutory authority and seek relief to correct those actions, the present suit is “in the nature of mandamus” so as to bring it within the purview of Section 1361. (d) § 10 of the Administrative Procedure Act. It is also contended that jurisdiction exists under Section 10 of the" }, { "docid": "16029133", "title": "", "text": "really seeks relief in the nature of mandamus. This Court does not ordinarily have jurisdiction to grant mandamus — such writs being beyond the powers of District Courts other than those for the District of Columbia. Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622; Harris v. Bayer, D.C.E.D.Pa.1955, 18 F.R.D. 392.” Realistic relief would certainly have to go somewhat beyond mere suspension of the demolition contract. Indeed, at argument the plaintiff asked this Court to direct defendants to declare the Morris bid improper. It is evident that a bare injunction against execution of the contract, said to have already been awarded to Morris, would be utterly sterile. In addition, defendants would necessarily be ordered to do something in the plaintiff’s interest such as to (1) award the contract to plaintiff instead of Morris; or (2) discard all quotations and initiate another set of invitations to bid. Whatever other alternative there might be, it would seem to require the direction of some affirmative act. Certainly the Court is not expected to direct that work on the Independence National Historical Park, so far as it\" relates to Building No. 42, be suspended indefinitely. In that situation of the case, one, encounters the rule that, with reference to relief in the nature of mandamus, the' District Courts of the United States will not do indirectly that which they have no jurisdiction to do directly. Breiner v. Kniskern, D.C.E.D.Pa.1950, 90 F.Supp. 9, 11; Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622, 627; Harris v. Bayer, D.C.E.D., Pa.1955, 18 F.R.D. 392, 393. It therefore seems worth mentioning again that the five cases urged by the plaintiff, in which mandamus or mandatory injunction against the Secretary of the Interior was permitted, were without exception causes which arose in the District of Columbia, whose courts are, unique in the federal system in that — for historical reasons — they retain original jurisdiction to grant the writ of mandamus. Petrowski v. Nutt, 9 Cir., 1947, 161 F.2d 938, 939. II. The only attempt which plaintiffs have made to secure jurisdiction over the persons of the three" }, { "docid": "15686720", "title": "", "text": "in each week in issue were to be deemed working time. This is precisely what the Supreme Court did in the Mt. Clemens case [66 S.Ct. 1195] when it reversed and remanded “for the determination of the amount of walking time involved and the amount of preliminary activities performed, giving due consideration to the de minimis doctrine and calculating the resulting damages under the Act.” Plaintiffs contend that the District Court’s order of November 4, 1946, is not an injunctional order within the meaning of Section 129 of the Judicial Code, hence not appealable. The order unequivocally commands the performance of a positive act, and that would seem to comply precisely with the elemental definition of a mandatory injunction. See 43 C.J.S. Injunctions, § 5, 409 ; 32 C.J. 22, and cases there cited. No one denies that a court of equity has jurisdiction in proper cases to compel the performance of an act as well as to restrain it; nor is it denied that formerly injunctions were not ordinarily issued in actions at law. However, the latter was not always true, and under our present rules there is but one form of action known as “civil action.” In such action remedies both at law and, in equity are available to parties in the same court and in the same case. Cyc. of Federal Procedure, Vol. 3, section 797; Kansas City, St. Louis & C. R. Co. v. Alton R. Co., 7 Cir., 124 F.2d 780; Ammond v. Pennsylvania R. Co., 6 Cir., 125 F.2d 747, certiorari denied, 316 U.S. 691, 62 S.Ct. 1283, 86 L.Ed. 1762; Grauman v. City Co. of New York, D.C., 31 F.Supp. 172. In determining whether an order constitutes an injunction under Section 129, the substance of the order is controlling, and whether it was ancillary to a proceeding formerly denominated at law or in equity is immaterial. Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 150 F.2d 394, certiorari denied, 326 U.S. 781, 66 S.Ct. 339. Section 129" }, { "docid": "16029131", "title": "", "text": "Secretary, in the teeth of long standing administrative practice, suddenly sought to impose detailed common carrier regulations on an interstate pipe line which was then in the very process of construction. Mandatory injunction was granted requiring the Secretary to issue the rights of way necessary to permit construction to proceed. In each situation there was a distinct absence of any adequate remedy at law. Plaintiff points out that those decisions, and its present case, are distinguishable from instances such as the following in which equitable relief was denied: Federal Power Commission v. Metropolitan Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408 and Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. In the former, it was held that the Court of Appeals for the Third Circuit, 94 F.2d 943, had erred in restraining Federal Power Commission hearings. In the latter it was decided that the Court of Appeals for the First Circuit, 88 F.2d 154, had erroneously held that a District Court, 15 F.Supp. 915, had jurisdiction to enjoin a National Labor Relations Board hearing. It is of particular significance that plaintiff’s five cases wherein equitable relief against the Secretary of the Interior was granted all came from the courts of the District of Columbia. On the other hand, the two cases in which relief was denied originated elsewhere. It was clearly more than chance that brought those first cases to the District of Columbia. One may well inquire as to where else a Cabinet Officer could be sued. Again, one may wonder what courts of the United States, other than those of the District of Columbia, have original jurisdiction in mandamus. Considerably deeper than any mere matter of venue is the settled fact of absence of original jurisdiction to grant mandamus, or any relief in the nature of mandamus, in any District Court of the United States outside of the District of Columbia. In Webb v. United States, D.C.E.D.Pa.1957, 21 F.R.D. 251, at page 256, this Court stated: “As to jurisdiction of the subject matter, it appears that plaintiff" }, { "docid": "17948277", "title": "", "text": "Service Act. 5 U.S.C.A. § 631 et seq. The Supreme Court of the United States, in White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 921, 43 L.Ed. 199, and White v. Butler, 171 U.S. 379, 18 S.Ct. 949, 43 L. Ed. 204, reversed the lower court, and held that a court of equity has no' jurisdiction over the appointment and removal of executive appointees. The opinion, quoting Judge Lurton in Morgan v. Nunn, C.C., 84 F. 551, recites that “a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another.” The question of the power of a district court to grant a mandatory injunction against an administrative officer arose in the case of Branham v. Langley, 4 Cir., 139 F.2d 115, which was a suit to enjoin a draft board from delivering selectee for induction into' the army as a Negro, and asking a mandatory injunction requiring the draft board to classify selectee as an Indian and order his induction into the army as a white trainee. In a per curiam opinion the appellate court affirmed the district court of West Virginia in its dismissal of the suit, saying: “A sufficient answer is that the prayer for mandatory injunction with respect to official action by members of the Board is in effect a prayer for a writ of mandamus; and the District Court is without power to grant such writ.” (Emphasis added.) From the foregoing authorities, it, therefore, appears that this court is without jurisdiction to hear the cause, whether it be considered as a petition for a writ of mandamus, an action for a declaratory judgment, or a suit for a mandatory injunction. The action should be dismissed." }, { "docid": "20194912", "title": "", "text": "Act, 25 U.S.C. § 415, and its accompanying regulations, which govern the lease between Hollywood and the Tribe. 1. The Amended Complaint Should Be Construed as a Request for a Mandatory Injunction under the Administrative Procedure Act. We must determine the nature of the relief requested by Hollywood in the amended complaint before we address its futility. Hollywood cited both the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the Mandamus and Venue Act, 28 U.S.C. § 1361, as authorities for granting relief in the amended complaint. In a related motion, Hollywood explained that it sought “an injunction to compel the Secretary to enforce the lease by placing Hollywood ... back into possession of the leasehold premises.” Hollywood now argues that the amended complaint sought a mandatory injunction against the Secretary, not a writ of mandamus. The Secretary contends that a writ of mandamus is the only possible remedy. The Administrative Procedure Act waives the sovereign immunity of the United States to the extent that it permits “[a] person suffering legal wrong because of agency action” to “seek[ ] relief other than money damages” in federal court. 5 U.S.C. § 702. “Agency action” includes “failure to act.” Id. § 551(13). The Act provides that “[t]he form of proceeding for judicial review” may “includ[e] ... [a] mandatory injunction ... in a court of competent jurisdiction.” Id. § 703. The Act also provides that “the reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706. “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 2379, 159 L.Ed.2d 137 (2004) (alteration in original). The Mandamus and Venue Act provides, “The 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. A district court may" }, { "docid": "3427649", "title": "", "text": "Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550. To a contrary effect is Fleming v. Miller, D.C., 47 F.Supp. 1004, 1008, upon which respondents largely rely. But that decision in my view, rests upon a jurisdictional test too narrow. The court said: “Since Section 17 [of the Fair Labor Standards Act] does not authorize the court expressly to order the payment of back wages in actions brought under that section, those awards can be granted only as a result of the equity court’s power to grant incidental relief.” And apparently it was thought that the court sitting in a statutory proceeding under the Act was invested only with the jurisdiction expressly conferred by the Act and must view itself for purposes of the statutory proceeding as shorn of its general equitable jurisdiction. Throughout, the decision is predicated upon some distinction between jurisdiction with respect to back wages and jurisdiction with respect to wages accruing in the future. I find no basis for this distinction in the Act. Section 17 authorizes injunctions to restrain “violations” of Section 15, into which Sections 6 and 7 are incorporated by express reference. It contains no language which limits its effect to violations with respect to wages earned thereafter. Section 6 provides: “Every employer shall pay”, etc. It can be'violated only by failure to discharge the affirmative duty created by the Act. And violations can be enjoined only by ordering payment. Whether the injunction shall be couched in the awkward verbiage of a double negative (“You are enjoined from failing to pay”), or by affirmative mandatory language (“You are ordered to pay”), is wholly without legal significance. Since the statutory obligation is to “pay”, it is not discharged until payment is completed. Indeed, Section 16 by creating a private right of action for “unpaid minimum wages” unmistakably recognizes the continuing nature of the obligation. And since the obligation continues until discharged, it would appear to me that the failure to pay is likewise a continuing violation and as much within the purview of Section 17 as the failure to pay on the due" }, { "docid": "15142838", "title": "", "text": "section alone, and the complaint, taken as a whole, must itself indicate how this Court has jurisdiction to hear and determine the instant controversy. I turn first to the prayer for injunctive relief. In view of the fact that the plaintiff has already been discharged from government service, I am of the opinion that the injunctive relief prayed for is beyond the power of this Court to grant. The rationale underlying this conclusion is that the plaintiff is actually seeking, by way of mandatory injunction, relief in the nature of mandamus. She seeks to compel the defendant to take action in accordance with the hoped-for declaration by this Court that her discharge was wrongfully effected. It is well settled that, in the absence of special statutory authority, the district courts may issue writs of mandamus only in aid of the jurisdiction otherwise vested in them — but not as original writs in any case. Rule 81 (b), Federal Rules of Civil Procedure, 28 U.S.C.A. See Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622; Insular Police Commission v. Lopez, 1 Cir., 1947, 160 F.2d 673, certiorari denied 331 U.S. 855, 67 S.Ct. 1743, 91 L.Ed. 1863; Branham v. Langley, 4 Cir., 1943, 139 F.2d 115. A fair reading of the provisions of 28 U.S.C.A. § 1651(a), upon which the plaintiff relies in support of her contention that this Court has jurisdiction by way of mandamus, clearly supports the proposition that such a writ may only be issued by this Court when auxiliary in character. See, e. g., Stafford v. Superior Court of State of California, 9 Cir., 1959, 272 F.2d 407; Shimola v. Local Board No. 42 for Cuyahoga County, D.C.Ohio 1941, 40 F.Supp. 808. Similarly misplaced is the plaintiff’s reliance on section 10(b) of the Administrative Procedure Act (5 U.S.C.A. § 1009 (b). The power therein contained to issue writs of mandatory injunction is expressly confined to courts of “competent jurisdiction”; and, as I have already pointed out, this Court is without" }, { "docid": "12437008", "title": "", "text": "First, it argues that there is a significant difference between the text of § 15 of the Act, which authorizes equitable relief in actions brought by the United States, and the text of § 16, which applies to other parties. Specifically, it argues that the former is broad enough to encourage “structural relief” whereas the latter is limited to relief against anticompetitive “conduct.” Second, reading § 16 in its historical context, American argues that it reflects a well-accepted distinction between prohibitory injunctions (which are authorized) and mandatory injunctions (which, American argues, are not). American’s argument directs us to two provisions in the statutory text, and that is the natural place to begin our analysis. Section 15 grants the federal district courts jurisdiction “to prevent and restrain violations of this Act” when United States attorneys “institute proceedings in equity to prevent and restrain such violations” through petitions “praying that such violation shall be enjoined or otherwise prohibited.” Section 16 entitles “[a]ny person, firm, corporation, or association ... to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity.” It is agreed that the general language of § 15, which provides that antitrust violations “shall be enjoined or otherwise prohibited,” is broad enough to authorize divestiture. Indeed, in Government actions divestiture is the preferred remedy for an illegal merger or acquisition. As we wrote in the Du Pont case: “Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is inter-corporate combination and control, and it is reasonable to think immediately of the same remedy when §7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated §7 cases which have been reported, most decreed divestiture as a matter of course. Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and" }, { "docid": "17159997", "title": "", "text": "are now the Federal District Courts the right to issue a writ of mandamus or a writ in the nature of mandamus unless it is ancillary to some other relief sought. Knapp v. Lake Shore & Michigan Southern Railway Co., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870 (1905); Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743 (1887); McClung v. Silliman, 19 U.S. (6 Wheat.) 598, 5 L.Ed. 340 (1821); McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420 (1813); Marshall v. Crotty et al., 185 F.2d 622 (1st Cir. 1950); Fineran et al. v. Bailey, 2 F.2d 363 (5th Cir. 1924); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D.Mass.1960); People of United States ex rel. Barmore v. Miles, 177 F.Supp. 172 (W.D.Mich.1959); Robert Hawthorne, Inc. v. United States Department of Interior, 160 F.Supp. 417 (E.D.Pa.1958); Rosen v. Alleghany Corp., 133 F.Supp. 858 (S.D.N.Y.1955). See “Mandatory Injunctions as Substitutes for Writs of Mandamus in the Federal District Courts; A Study in Procedural Manipulation”, 38 Colum.L.Rev. 903 (1938). In McClung v. Silliman, 19 U.S. (6 Wheat.) 598, 5 L.Ed. 340 (1821), the plaintiff brought a diversity action for a writ of mandamus against a register of the United States land office in Ohio to compel him to deliver certain documents of title. Although the plaintiff argued that the existence of diversity of citizenship was sufficient to allow the adjudication of the suit in federal court, the decision of the Supreme Court was to the contrary. It held that the trial court had no power over a pure mandamus proceeding because the writ of mandamus was not “necessary for the exercise of its jurisdiction” under the All Writs Act and could not be used as a basis to obtain jurisdiction not already possessed. The Court asserted: “It cannot be denied, that the exercise of this power is necessary to the exercise of jurisdiction in the court below, but why is it necessary ? Not because that court possesses jurisdiction, but because it does not possess it. It must exercise this power, and" }, { "docid": "22994320", "title": "", "text": "Attorney General has neither the duty nor power to declare a judicial judgment void * * Mandamus, if issued m this case, would require performance of an act contrary to the court order. Furthermore, mandamus will issue only where there is no other plain, adequate and complete remedy. United States v. ex. rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272. Here appellee has a complete remedy by motion to correct such sentence in the court where it was entered. In McMurtrey v. Clark, supra, this court held that the United States District Court for the District of Columbia was “clearly without jurisdiction” of an action against the Attorney General brought under the Declaratory Judgment Act to restrain the Attorney General from further execution of the judgment and commitment imposed upon appellant by the District Court of the United States for the District of Louisiana on the ground that such judgment and commitment were void. The Government’s motion to dismiss the complaint was granted by the court below, and upon appeal, this court said: “Under the federal statutes the Attorney General is made the conduit through which the sentence of a federal court in a criminal case is carried into effect. His duty is to designate the place of confinement, and that duty appears to have been fully discharged. Appellant’s liberty is now restrained on the judgment and sentence of a court of competent jurisdiction and it is well established that neither mandamus nor mandatory injunction may be invoked to review judicial decision. The writ neither creates nor confers power to act, and may be used only to compel the exercise of powers already existing. * * * To all of this may be added the rule that mandamus never lies except where there is no other remedy and here habeas corpus is still available.” The Declaratory Judgment Act was designed to provide a remedy in a case or controversy while there is still opportunity for peaceable judicial settlement. It was the primary purpose of the act to have a declaration of rights" }, { "docid": "13887207", "title": "", "text": "603, 30 S.Ct. 405, 54 L.Ed. 345; Hughes Fed. Practice, § 1026. The order of the trial court is couched in the form of a double negative, a circumstance to which we attach no importance. If the court is without power in a particular case to require the doing of an affirmative act, it does not acquire that power by the form of words in which the command is couched. The order requiring Vaughan to send out letters to correct the untrue statements made in his earlier letters is justified on several distinct grounds: (1) It is the only appropriate means of rectifying the wrong done. (2) It was necessary to restore the status existing before Vaughan invaded appellee’s rights. (3) Equity having jurisdiction to issue the prohibitory injunction, it had power to do all other things necessary to accomplish complete justice, for equity does not do things piecemeal. . Appellant answers by directing attention to the fact that Congress has not authorized the court below to issue a writ of mandamus except in aid of jurisdiction otherwise acquired; authorities are cited to the point that a writ of mandamus may not be issued under the guise of a mandatory injunction. Covington & C. Bridge Co. v. Hager, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Knapp v. Lake Shore Railway Co., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743; Miguel v. McCarl, 291 U.S. 442, 452, 54 S.Ct. 465, 78 L.Ed. 901; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 S.Ct. 225, 41 L.Ed. 621; Smith v. Bourbon County, 127 U.S. 105, 8 S.Ct. 1043, 32 L.Ed. 73; Fuller v. Aylesworth (C.C.A.6) 75 F. 694; Stevenson v. Holstein-Friesian Ass’n (C.C.A.2) 30 F.(2d) 625. The contention indicates a misconception of the case at bar. This is not an action at law for mandamus but one in equity for an injunction. Injunction is a recognized remedy when adequate grounds therefor are established. It is an equitable remedy, obtainable only when the remedy at law is" }, { "docid": "20826445", "title": "", "text": "bases of jurisdiction and each presents certain problems. Each of them must in turn be examined since obviously if this Court is without jurisdiction the cause must be dismissed. 1. 28 U.S.C. § 1361. Mandamus. Plaintiffs contend that these regulations are an insufficient fulfillment of the Secretary of Agriculture's duty under the Act to give reduced price or free lunches to needy children because it is merely precatory. The plaintiffs want the defendants to be enjoined from failing to insure that all needy children in California who participate in the program get reduced price or free lunches. Although cast in terms of a restraining injunction, the request for relief is actually a mandatory injunction, and a mandatory injunction against a public officer forcing him to perform a duty under a statute is “in the nature of mandamus” within the meaning of 28 U.S.C. § 1361. Cf. Johnson v. Interstate Power Co., 187 F.Supp. 36 (D.S.D.1969). Section 1361 vests this Court with jurisdiction since plaintiffs’ complaint is an effort to compel “an officer .. . of the United States . . . to perform a duty owed to the plaintiff.” The legislative history of the statute makes it clear that Congress’ primary intention was to expand the availability of the remedy as it then existed ■ rather than to expand the scope of the remedy. 2 U.S.Code Cong, and Admin.News, p. 2784 (1962). See White v. Adm’r.- of General Services Administration, 343 F.2d 444 (9th Cir. 1965). [Prior to 1962 it had been held that as the result of historical accident, mandamus and even equitable mandatory relief could only be had against the United States in the District Court for the District of Columbia. The matter is presented in some detail in 3 K. Davis, Administrative Law Treatise § 23.10 (1958).] Since the remedy was not intended to be expanded by § 1361, the question arises as to the extent to which strict regard must be had for the ancient complexities of the law of mandamus. Professor Davis makes a very convincing showing that the traditional “ministerial-discretionary” distinction in mandamus law" }, { "docid": "22994321", "title": "", "text": "and upon appeal, this court said: “Under the federal statutes the Attorney General is made the conduit through which the sentence of a federal court in a criminal case is carried into effect. His duty is to designate the place of confinement, and that duty appears to have been fully discharged. Appellant’s liberty is now restrained on the judgment and sentence of a court of competent jurisdiction and it is well established that neither mandamus nor mandatory injunction may be invoked to review judicial decision. The writ neither creates nor confers power to act, and may be used only to compel the exercise of powers already existing. * * * To all of this may be added the rule that mandamus never lies except where there is no other remedy and here habeas corpus is still available.” The Declaratory Judgment Act was designed to provide a remedy in a case or controversy while there is still opportunity for peaceable judicial settlement. It was the primary purpose of the act to have a declaration of rights not theretofore determined, and not to determine whether rights theretofore adjudicated have been properly adjudicated. To permit every person convicted in any United States District Court who claimed that his sentence was void because of a violation of his constitutional rights, such as double jeopardy, appointment of counsel, and the like, to maintain an action in the District of Columbia to set such sentence aside, would create a conflict of jurisdictions which was not contemplated or intended by the Declaratory Judgment Act. Di Benedetto v. Morgenthau, supra; Valenti v. Clark, D. C., D.C., 83 F.Supp. 167; United States v. Rollnick, D.C.M.D.Pa. 33 F.Supp. 863; Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394, 154 A.L.R. 740. The action for declaratory judgment is not suitable and does not lie in the District of Columbia in such cases as a substitute for a motion to vacate or to correct the sentence in the court where it was imposed, or as a substitute for habeas corpus in the district where the unlawful detention occurs, or as" }, { "docid": "23066737", "title": "", "text": "decision to terminate his employment. II. THE CLAIM FOR INJUNCTIVE RELIEF Although the district court did deal in terms with the complaint’s request for injunctive relief against the defendants’ allegedly racially discriminatory practices, we are of the opinion that such relief is barred by the doctrine of sovereign immunity. This holding is compelled under our decision in Blaze v. Moon, 5 Cir. 1971, 440 F.2d 1348. Blaze, supra, was a suit by a former temporary employee of the United States Army Corps of Engineers. The complaint named the Corps and its Houston, Texas, District Engineer as defendants and charged that the Corps engaged in the practice of hiring blacks for temporary jobs only, reserving its permanent positions for white applicants. The district court granted the defendants’ motion to dismiss for lack of jurisdiction' by reason of sovereign immunity, 1970, 315 F.Supp. 495. We affirmed the dismissal of the complaint, citing Judge (now Mr. Justice) Blackmun’s opinion for the Eighth Circuit in Gnotta v. United States, 1969, 415 F.2d 1271, cert. denied 1970, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115. Conceding the undetermined possibility that various branches of the former United States Post Office did indeed practice racial discrimination with respect to department employees, the district court was without power to consider such a request for relief in the absence of a specific grant of jurisdiction from Congress to afford antidiscrimi-nation injunctive relief. III. THE CLAIM FOR REINSTATEMENT Traditionally, the procedural avenue to reinstatement for an ex-employee of the federal government claiming to be the victim of improper discharge has been a petition for mandatory injunction or writ of mandamus directed to the head of the agency concerned commanding the re-employment of the petitioner. Schwartz and Jacoby, Litigation with the Federal Government (1970), Chapter XVI. The exhaustion of available administrative remedies was a prerequisite to maintenance of such a mandamus action. Bolger v. Marshall, 1951, 90 U.S.App.D.C. 30, 193 F.2d 37. See, also, Chandler v. Judicial Council of Tenth Circuit of United States, 1970, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100. The remedy of mandamus directed against" }, { "docid": "17159996", "title": "", "text": "DAVIS, District Judge. The plaintiff stockholders have instituted this diversity action solely to compel the corporate defendant to permit them “to examine [its] share register, [its] books of account and records, the records of the proceedings of its shareholders and directors, and the books and records of account of its subsidiary corporation.” The matter now before the court is the defendant’s motion to dismiss the complaint for lack of jurisdiction over the subject matter. The defendant contends first of all that the United States District Court has no power to grant relief solely in the nature of a Writ of Mandamus and secondly that the matter in controversy does not exceed the jurisdictional amount of $10,000. Because of the court’s decision on the first ground, it will be unnecessary to reach the second. Since the early years of our Republic, the United States Supreme Court and the inferior federal courts have inter preted the jurisdictional statute, now 28 U.S.C. § 1332 and the All Writs Act now 28 U.S.C. § 1651, as denying to what are now the Federal District Courts the right to issue a writ of mandamus or a writ in the nature of mandamus unless it is ancillary to some other relief sought. Knapp v. Lake Shore & Michigan Southern Railway Co., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870 (1905); Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743 (1887); McClung v. Silliman, 19 U.S. (6 Wheat.) 598, 5 L.Ed. 340 (1821); McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420 (1813); Marshall v. Crotty et al., 185 F.2d 622 (1st Cir. 1950); Fineran et al. v. Bailey, 2 F.2d 363 (5th Cir. 1924); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D.Mass.1960); People of United States ex rel. Barmore v. Miles, 177 F.Supp. 172 (W.D.Mich.1959); Robert Hawthorne, Inc. v. United States Department of Interior, 160 F.Supp. 417 (E.D.Pa.1958); Rosen v. Alleghany Corp., 133 F.Supp. 858 (S.D.N.Y.1955). See “Mandatory Injunctions as Substitutes for Writs of Mandamus in the Federal District Courts; A Study in Procedural Manipulation”, 38 Colum.L.Rev." } ]

[ { "docid": "15231552", "title": "", "text": "firmly established that the protection afforded by the Sixth Amendment has no application until after a prosecution is instituted, * * Foley v. United States, 290 F.2d 562, 565 (8th Cir. 1961). Rule 6(e) grants discretion to the Court to seal an indictment, until the defendant is in custody or has given bail. This rule must receive an equal status with federal statutory law. 18 U.S.C.A. § 3771. This discretionary authority may be exercised notwithstanding the fact that the indictment was returned on the last day within the statute of limitations. The exercise of such discretionary action must be necessary, of reasonable duration under the circumstances, and exercised only to accomplish the limited purposes authorized by the criminal rule for which it was designed. Was the primary purpose for keeping this indictment sealed from August 23, 1962 to August 6, 1963, within the purview of Criminal Rule 6(e) ? Was it to keep secret the indictment until Sherwood and Berman might return into the United States, so their custody could be secured ? Was its purpose to give time to the Government to investigate and decide, whether or not it would move to quash the indictment before it was made public? Was such action taken because of an alleged commitment to defendant Doyle, that he would not be prosecuted? The Government concedes, that at least since early September 1962 until August 6, 1963, the last was the primary reason. The Government contends that although this latter fact was true, unless these defendants can show actual prejudice they have no valid justification to warrant a dismissal. This Court is of the opinion, based on the facts in this particular case, wherein the criminal statute of limitations was about to run, that a reasonable time within which to accomplish the purposes of Rule 6(e), under the circumstances, should extend not more than ninety (90) days from the return date. Under other circumstances, such as where the unsealing was done before the running of the statute, such limitation would not necessarily apply. Inasmuch as the sealing of this indictment was extended by action" } ]

[ { "docid": "116583", "title": "", "text": "be sealed. I now turn to Cosolito’s assertion that the preindictment delay in this case deprived him of due process. Although statutes of limitation provide the primary guarantee against overly stale criminal charges, the Supreme Court has held that the Fifth Amendment does have a limited role to play where the defendant can demonstrate actual prejudice and the government delay was unreasonable. United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 324-25, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). However, proof of actual prejudice is a “generally necessary” threshold requirement which must be satisfied before a court need inquire into the reasons for delay. See Lovasco, supra, 431 U.S. at 789-90, 97 S.Ct. at 2048; United States v. Lieberman, 608 F.2d 889, 902 (1st Cir.), cert, denied, — U.S. —, 100 S.Ct. 673, 62 L.Ed.2d 649 (1979). Cosolito’s only claim of prejudice is a conclusory statement that he can no longer remember how his tax liability was computed. Prescinding from the question whether that computation is even material to his present prosecution for bribery, I rule that Cosolito’s alleged lack of memory, without more, is not sufficient actual prejudice to require further due process inquiry. United States v. Ramos, 586 F.2d 1078,1079 (5th Cir. 1978). Therefore, Cosolito’s motion to dismiss the indictment on Fifth Amendment grounds should be denied. That leaves for resolution Cosolito’s contention that the indictment was improperly sealed. Rule 6(e)(4) provides: “(4) Sealed Indictments. — The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.” Cosolito argues that Rule 6(e)(4) represents an exception to the statute of limitations and should be strictly construed. Therefore, defendant concludes, Rule 6(e)(4) only authorizes the government to seal an indictment in order to obtain custody of a" }, { "docid": "6512087", "title": "", "text": "original January indictment had been improperly sealed and must be deemed returned when unsealed in June, which was outside the limitations period. As discussed in Part I, ante, the criminal activity alleged in count seven occurred in May 1984, within five years of the January 1989 indictment. The district court found that the government’s reasons for requesting that the indictment be sealed were legitimate, that the original indictment was properly sealed, and that the defendant had not demonstrated any actual prejudice suffered as a result of the sealing. United States v. Maling, 737 F.Supp. 684, 694-95 (D.Mass.1990). On appeal the defendant reiterates his argument below that the original indictment was improperly sealed because (a) Fed.R.Crim.P. 6(e)(4) permits sealing only for the purpose of gaining custody over the defendant and the government knew the defendant’s whereabouts; (b) the reasons given by the government in support of the request to seal were not the basis for the government’s continuing to seal the indictment; and (c) the government had no legitimate basis for keeping the indictment sealed. Unlike the defendant, we do not read Rule 6(e)(4) so narrowly as to forbid the sealing of an indictment for any reason other than taking a defendant into custody. We agree with the other courts that have considered the question that, in keeping with the practice in effect at the time Rule 6(e)(4) was adopted, a magistrate may grant the government’s request to seal an indictment “for any legitimate prosecutorial objective or where the public interest otherwise requires it.” United States v. Lakin, 875 F.2d 168, 170-71 (8th Cir.1989) (adopting Rule 6(e)(4) historical analysis and holding in United States v. Southland Corp., 760 F.2d 1366 (2d Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 82, 88 L.Ed.2d 67 (1985)). Accord United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir.), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987); United States v. Ramey, 791 F.2d 317, 321 (4th Cir.1986); United States v. Edwards, 777 F.2d 644, 648 (11th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 1645, 90 L.Ed.2d 189 (1986). “[S]uch" }, { "docid": "12846903", "title": "", "text": "denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977); Fed.R.Crim.P. 6(f). Accordingly, when a sealed indictment is not opened until after the expiration of the time allowed by the statute of limitations for the prosecution of an offense, the statute ordinarily is not a bar to prosecution if the indictment was timely filed. United States v. Muse, 633 F.2d 1041 (2d Cir.1980) (en banc), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981). However, when the defendant can demonstrate substantial actual prejudice occurring between the date of sealing and the date of unsealing, the expiration of the limitations period before the latter event warrants dismissal of the indictment. Id. at 1042. In such a case the indictment is not considered “found” until it is unsealed. The authority of the court to maintain the secrecy of an indictment is conferred by Rule 6(e)(4) of the Federal Rules of Criminal Procedure: The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons. Where the prosecution can demonstrate that the decision to keep an indictment secret is informed by the exercise of sound discretion in the public interest, the date of return, rather than the date of unsealing, will establish the time the indictment is “found.” United States v. Southland Corp., 760 F.2d 1366, 1379-80 (2d Cir.), cert. denied, — U.S. —, 106 S.Ct. 82, 88 L.Ed.2d 67 (1985); see Srulowitz, 785 F.2d at 391. We have held that there are various legitimate prosecutorial objectives, including, but not limited to, the facilitation of arrest, that will justify the sealing of an indictment. Id. Here, the defendant was unable to demonstrate any prejudice arising from the sealing of his indictment and occurring during the period between sealing and unsealing. He was content merely to challenge the government’s assertion that secrecy was" }, { "docid": "9830247", "title": "", "text": "to gather additional evidence against the defendants, not because it needed more time to arrest defendants. Finally, they urge dismissal on the ground that only a properly sealed indictment tolls the statute of limitations and the limitations period had elapsed before the court unsealed the fourth superseding indictment in February 1996. Criminal Rule 6(e)(4) provides: The federal magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons. Fed.R.Crim.P. 6(e)(4). Rule 6(e) rests on the premise that criminal defendants not yet in custody may elude arrest upon learning of their indictment. Once the court sealed the fourth superseding indictment in this case, arrest warrants were issued against Arsenault, Balsam and Zackular, who had not yet been taken into custody on the federal charges. Contrary to appellants’ contention, moreover, the government need not articulate its reasons for requesting that an indictment be sealed, so long as its request is based on a ground set forth in Rule 6(e). See, e.g., United States v. Laliberte, 131 F.R.D. 20, 20-21 (D.Mass.1990); United States v. Maroun, 699 F.Supp. 5, 6-7 (D.Mass.1988). Their further assertion—that the government utilized the sealing procedure as a ruse—is meritless. Rule 6(e) does not “forbid the sealing of an indictment for any reason other than taking a defendant into custody ... [but] a magistrate may grant the government’s request ... ‘for any legitimate prosecutorial objective or where the public interest otherwise requires it.’ ” United States v. Richard, 943 F.2d 115, 118 (1st Cir.1991) (citation omitted). In the present case, the government needed to take steps to place cooperating defendant Ferguson in a witness protection program during the summer of 1995. The protection of a key prosecution witness undoubtedly qualifies as a legitimate pros-ecutorial objective. See id. at 119 (citing with approval United States v. Ramey, 791 F.2d 317, 318 (4th Cir.1986)). Nevertheless," }, { "docid": "23462429", "title": "", "text": "1978. The predecessor of the instant indictment was returned by the grand jury on March 25, 1983. However, the Government obtained an order sealing the indictment; the basis for this was that announcement of the indictment would make it more difficult for the Government to obtain compléte and truthful testimony from Frank Kitchen, a vice president of Southland who had been granted immunity, see Matter of Kitchen, 706 F.2d 1266 (2 Cir.1983). After this court’s decision on April 27, 1983 made it evident to the Government that no purpose would be served by recalling Kitchen before the grand jury, the indictment was unsealed on May 5, 1983. Judge Sifton found that the sealing, for a period of six weeks, lasted no longer than was necessary to accommodate legitimate prosecutorial interests. Mastropieri contends that there was no legal basis for the ruling and that May 5, 1983 must be taken as the date of the return of the indictment, thus barring prosecution for conspiracy to violate the Travel Act. He relies on two reasons. One is that under F.R.Cr.P. 6(e)(4) an indictment may be sealed only to assist in achieving custody of the defendant; the other is that if sealing is permitted for any other purpose, there was no proper purpose here. Under both 18 U.S.C. § 3282 and 26 U.S.C. § 6531, the indictment must be “found” within the statutory periods. Read literally this does not require that the indictment must be made public. However, F.R.Crim.P. 6(e)(4) provides: Sealed Indictments. The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and. execution of a warrant or summons. Mastropieri insists that no reason except the one mentioned in the Rule can justify the sealing of an indictment. There is a surprising dearth of authority upon the subject. In United States v. Michael, 180 F.2d 55, 57 (3 Cir.1949), cert." }, { "docid": "17916845", "title": "", "text": "and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons. Although the text of Rule 6(e)(4) would appear to indicate that the reason for seal ing an indictment is to facilitate taking the defendant into custody, the Second Circuit has held that this rule permits sealing for other purposes. See, e.g., United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir.), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987) (“We have held that there are various legitimate prosecutorial objectives, including, but not limited to, the facilitation of arrest, that will justify the sealing of an indictment.”). Moreover, the magistrate who directs the sealing of the indictment need not memorialize the reasons for the sealing: Rather, a defendant may challenge the sealing of the indictment after it is unsealed, and, at that time, the government must “demonstrate legitimate prosecutorial purposes for the secrecy of the indictment, and the defendant is entitled to show, ‘substantial, irreparable, actual prejudice’ arising from the decision to seal.” Srulomtz, 819 F.2d at 41 (quoting United States v. Edwards, 777 F.2d 644, 649 (11th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1645, 90 L.Ed.2d 189 (1986)). In this regard, the government has made an adequate showing of a “legitimate prosecutorial purpose[ ]” for the sealing of this indictment. The government maintains that secrecy of the indictment was necessary in order to frustrate any attempt by Coiro to shade his testimony at the Gotti trial in light of his testimony before the grand jury. The Second Circuit has already determined that a legitimate basis for the sealing of an indictment is the concern for obtaining “complete and truthful testimony” from a witness in a pending criminal matter. United States v. Southland Corp., 760 F.2d 1366, 1378-81 (2d Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 82, 88 L.Ed.2d 67 (1985). Furthermore, although Coiro has demonstrated some measure of prejudice by the sealing of the indictment—that is, fading recollection of the events that underlie the indictment—that prejudice is not the “substantial" }, { "docid": "116584", "title": "", "text": "the question whether that computation is even material to his present prosecution for bribery, I rule that Cosolito’s alleged lack of memory, without more, is not sufficient actual prejudice to require further due process inquiry. United States v. Ramos, 586 F.2d 1078,1079 (5th Cir. 1978). Therefore, Cosolito’s motion to dismiss the indictment on Fifth Amendment grounds should be denied. That leaves for resolution Cosolito’s contention that the indictment was improperly sealed. Rule 6(e)(4) provides: “(4) Sealed Indictments. — The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.” Cosolito argues that Rule 6(e)(4) represents an exception to the statute of limitations and should be strictly construed. Therefore, defendant concludes, Rule 6(e)(4) only authorizes the government to seal an indictment in order to obtain custody of a defendant who otherwise might flee. There have been few reported cases on the reasons for which the government may properly seal an indictment for a period beyond the statute of limitations. One case has suggested that the only valid reason for sealing is the one set forth in Rule 6(e)(4), that is, obtaining custody over the defendant. United States v. Sherwood, 38 F.R.D. 14, 20 (D.Conn.1964). Another case has held that the government may legitimately seal an indictment in situations where it is able to locate and gain custody over some, but not all, co-defendants named in an indictment. United States v. Watson, 599 F.2d 1149, 1155 (2d Cir. 1979). Still another case has suggested a much broader interpretation of Rule 6(e)(4), that the government may licitly seal an indictment for prosecutorial reasons other than gaining custody over a defendant or co-defendant. United States v. Heckler, 428 F.Supp. 269, 271-72 (S.D.N.Y.1976); see also United States v. Michael, 180 F.2d 55, 57 (3d Cir. 1949), cert, denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383" }, { "docid": "12259980", "title": "", "text": "for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.” The question is whether an indictment has been “found” when it is filed in open court even though it remains sealed. The case of United States v. Michael, 3 Cir., 1949, 180 F.2d 55, 56, certiorari denied 1950, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383, is precisely in point. There the appellant argued that since the sealed indictment was not opened within three years after the alleged offense was committed it was not “found” within the three year statute of limitations. To this point the court said: “We do not agree. The finding of an indictment is the function of the grand jury. * * * When the grand jury has found an indictment to be a true bill and has completed its action thereon by returning the indictment, duly endorsed as a true bill by its foreman, to the district court in open session, its function has been fulfilled. The indictment has been ‘found’ within the meaning of the statute of limitations regardless of what the district court may thereafter do or fail to do with respect thereto.” Defendants argue that the result of the United States v. Michael, supra, works an injustice. They argue that under the ruling in the case the Government could keep an indictment under seal for many years and then commence its prosecution when the witnesses and proofs necessary for the defense have become unavailable. Certainly the purpose of the statute of limitations is to avoid such experience. However, the Michael case should not be interpreted so broadly. The court specifically found that the appellant was not prejudiced by the delay of fifty-four days in making the indictment public. Criminal Procedure Rule 6(e) authorizes indictments to be kept secret until the defendant is in custody or has given bail. The rule is important to criminal administration. It certainly encompasses a situation where the defendant cannot be found within three years after the alleged commission of the" }, { "docid": "3330502", "title": "", "text": "defendants. We think that the denial of the initial and renewed motions for a mistrial was under all the circumstances within the court’s sound discretion. See United States v. Kompinski, 373 F.2d 429, 432 (2d Cir. 1967). Judgment affirmed as to appellants Watson and Whitley; judgment reversed and indictment dismissed as to appellant Muse. . 18 U.S.C. § 3282 provides: Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. . Prior to amendment in 1977, Fed.R.Crim.P. 6(e) read in pertinent part: The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons. . The court also suggested that a due process violation requires only a showing of substantial prejudice, regardless of whether the Government had intentionally delayed to gain a tactical advantage over the accused; and that in any case, the decision to seal the indictment was such an intentional, tactical act. United States v. Heckler, 428 F.Supp. 269, 273 (S.D.N.Y.1976). We are not convinced of the soundness of these suggestions in light of United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); our discussion of Heckler should therefore not be interpreted as an approval of its holding that the delay violated due process. . Judge Friendly disagrees on two grounds with our conclusion that the statute of limitations ran as to Muse. First, he suggests that Muse did not suffer substantial prejudice between June or November 1976 and September 1977. Even if we were to agree with the psychological premise on which this is based and of which we doubt judicial notice may be taken, we would not agree that only prejudice occurring within the period after indictment is" }, { "docid": "116585", "title": "", "text": "defendant who otherwise might flee. There have been few reported cases on the reasons for which the government may properly seal an indictment for a period beyond the statute of limitations. One case has suggested that the only valid reason for sealing is the one set forth in Rule 6(e)(4), that is, obtaining custody over the defendant. United States v. Sherwood, 38 F.R.D. 14, 20 (D.Conn.1964). Another case has held that the government may legitimately seal an indictment in situations where it is able to locate and gain custody over some, but not all, co-defendants named in an indictment. United States v. Watson, 599 F.2d 1149, 1155 (2d Cir. 1979). Still another case has suggested a much broader interpretation of Rule 6(e)(4), that the government may licitly seal an indictment for prosecutorial reasons other than gaining custody over a defendant or co-defendant. United States v. Heckler, 428 F.Supp. 269, 271-72 (S.D.N.Y.1976); see also United States v. Michael, 180 F.2d 55, 57 (3d Cir. 1949), cert, denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). The reasons set forth by the government in its application for sealing concededly have nothing to do with gaining custody over defendants Cosolito and Russo. I do not reach, however, the legal question whether the reasons given by the government in support of its request to seal would be valid reasons if factual, because after the evidentiary hearing I find those alleged reasons not to be factual and I rule therefore that the sealing authorized on the basis of misstatements as to the true facts was improper. As the court stated in Watson, supra, “even if the defendant shows no prejudice, delay in unsealing the indictment would be unreasonable if there were no legitimate prosecutorial need for it.” 599 F.2d at 1156 n.4. In finding no factual basis for sealing the indictment, I start with the specific reason stated by Attorney Greenidge in his application — that Russo and Cosolito were the common link with the Brooklyn investigation. I am satisfied by the evidence adduced at the hearing, and find, that the government knew" }, { "docid": "21024919", "title": "", "text": "the Second Circuit held that the limitations period may be extended by sealing the indictment only within “reasonable limits.” Id. at 1155. “This standard permits an extension only to the degree necessary to accommodate the prosecutorial interests that the sealing of the indictment legitimately furthers.” Id.See also United States v. Sherwood, 38 F.R.D. 14, 18-19 (D.Conn.1964) (holding that Fed.R.Crim.P. 6(e) “is obviously intended to be exercised only for a reasonable and limited period, during which prompt government action can accomplish its clearly stated purpose”); United States v. Heckler, 428 F.Supp. 269 (S.D.N.Y.1976) (“When the defendants are available the government may not seal an indictment for more than a reasonable time after the statute of limitations has expired.”); cf. United States v. Richard, 943 F.2d 115, 119 (1st Cir.1991) (refusing to dismiss an indictment because the reasons for the delay in unsealing were legitimate prose-cutorial objectives). In this case, the government implicitly concedes that the delay in unsealing the indictment was unreasonable, admitting in its memorandum that “[i]n the present case, although a reasonable period of delay was warranted, the government is hard pressed to justify the fact that the case agent took fourteen months to arrest the defendants.” Gov’t Mem. 12. Having in effect acknowledged that the protracted delay in unsealing cannot be justified by legitimate prosecutorial purposes, the government seeks, instead, to salvage the indictment by arguing that any time an indictment is sealed properly, the defendant must show actual prejudice in order to prevail on statute of limitations grounds. I disagree. Where the government has no legitimate purpose served by keeping the indictment sealed beyond the expiration of the limitations period, the defendants need not show prejudice, even if the indictment was properly sealed initially. DISCUSSION Recognizing important policies underlying the statute of limitations, Watson narrowly constrained the government’s ability to toll the limitations period by sealing an indictment; an indictment may remain sealed only for a reasonable time in light of the government’s prosecutorial needs. See Watson I, 599 F.2d at 1154. The question before this court, which Watson did not have occasion to reach, is what" }, { "docid": "17916844", "title": "", "text": "contends that the indictment was sealed for “no legitimate reason” and that the delay in unsealing the indictment only acted “to cause further clouding of the defendant’s memory with regard to an incident [i.e., the Ravenite conversations of November 30, 1989] that occurred some two years ago.” Affidavit of David A. DePetris 116. In reply, the government argues that it sealed the indictment in April of 1991 so that it could “avoid providing Coiro with the minutes of his grand jury testimony prior to his testimony at the Gotti trial.” Government’s Memorandum of Law at 6. The government claims that it perceived a certain urgency in asking the grand jury to return the indictment in April of 1991 because the term of that grand jury was to expire in September of 1991. Federal Rule of Criminal Procedure 6(e)(4) provides: The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons. Although the text of Rule 6(e)(4) would appear to indicate that the reason for seal ing an indictment is to facilitate taking the defendant into custody, the Second Circuit has held that this rule permits sealing for other purposes. See, e.g., United States v. Srulowitz, 819 F.2d 37, 40 (2d Cir.), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987) (“We have held that there are various legitimate prosecutorial objectives, including, but not limited to, the facilitation of arrest, that will justify the sealing of an indictment.”). Moreover, the magistrate who directs the sealing of the indictment need not memorialize the reasons for the sealing: Rather, a defendant may challenge the sealing of the indictment after it is unsealed, and, at that time, the government must “demonstrate legitimate prosecutorial purposes for the secrecy of the indictment, and the defendant is entitled to show, ‘substantial, irreparable, actual prejudice’ arising from" }, { "docid": "23462430", "title": "", "text": "that under F.R.Cr.P. 6(e)(4) an indictment may be sealed only to assist in achieving custody of the defendant; the other is that if sealing is permitted for any other purpose, there was no proper purpose here. Under both 18 U.S.C. § 3282 and 26 U.S.C. § 6531, the indictment must be “found” within the statutory periods. Read literally this does not require that the indictment must be made public. However, F.R.Crim.P. 6(e)(4) provides: Sealed Indictments. The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and. execution of a warrant or summons. Mastropieri insists that no reason except the one mentioned in the Rule can justify the sealing of an indictment. There is a surprising dearth of authority upon the subject. In United States v. Michael, 180 F.2d 55, 57 (3 Cir.1949), cert. denied sub nom. United States v. Knight, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950), decided only three years after the Criminal Rules were adopted, the court stated in an opinion by Judge Maris: Criminal Procedure Rule 6(e) authorizes indictments to be kept secret during the time required to take the defendant into custody. If such secrecy may lawfully be imposed in that situation we see nothing unlawful in the court imposing secrecy in other circumstances which in the exercise of a sound discretion it finds call for such action. (footnote omitted). The court would scarcely have said this if the taking of custody had been the sole objective. The notes of the Advisory Committee written when Rule 6(e) was adopted in 1946 say cryptically that “[t]he ... sentence authorizing the court to seal indictments continues present practice.” Such evidence as we have found suggests that the practice at the time the Rule was written allowed courts to seal indictments for reasons other than obtaining custody of the defendants. A treatise of the" }, { "docid": "3330488", "title": "", "text": "to the New York police on another matter some six months before his arrest. Judge Sifton found no reason to doubt the good faith of the Government’s effort to locate Watson and, in the light of the well-publicized flights of Frank Matthews and others wanted in connection with narcotics charges, found that it was realistic for the Government to believe that an arrest of one defendant would lead to the flight of one or more of the others. Indeed, the “John Doe” codefendant in this case known as “Young-blood” has not even now been located. As to the appellant Whitley, the other “John Doe” defendant, whom Egister and Diamond knew only as “Robert” or “Charles,” the Government learned his real name only on December 19, 1977, when an informant identified him. He was arrested that same day. Although the delay between filing and unsealing the indictment was not so clearly justifiable as the prefiling delay, we conclude that the Government’s efforts to find the defendants during that period were nevertheless in good faith under the standard established by Lovasco, supra. Accordingly, we hold that the delay in unsealing the indictment did not violate appellants’ due process rights. We turn, therefore, to the statute of limitations issue. The law seems clear that the filing of a sealed indictment within the statutory period serves to toll the statute of limitations even if the indictment is not unsealed until after the period has expired. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). See 1 C. Wright, Federal Practice and Procedure § 110, at 200-01 (1969). Under Rule 6(e) of the Federal Rules of Criminal Procedure, an indictment may be kept secret until a defendant is in custody or has given bail, and in that case the clerk seals the indictment and its contents remain undisclosed except when necessary for the issuance and execution of a warrant or summons. Thus, where a defendant cannot be found, it is possible nevertheless to indict him within the period of the statute," }, { "docid": "21893690", "title": "", "text": "of unsealing and notification to the defendant. Marion indicates that the overriding policy of the statute of limitations is to protect a defendant from excessive delay which undermines his ability to defend himself. Such delay, of course, terminates only when the defendant is apprised of a criminal indictment. However, Federal Rule of Criminal Procedure 6(e), which allows an indictment to be kept secret until the defendant is in custody, has been interpreted to mean that the filing of a sealed indictment within the statutory period serves to toll the statute of limitations. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950); see United States v. Watson, 599 F.2d 1149, 1154 (2d Cir. 1979) (original panel decision). An accused in appellant Muse’s position therefore cannot claim a statute of limitations bar when an indictment is filed and sealed prior to expiration of the statutory period. This leads to the ultimate question of this case: as a matter of supervisory power or otherwise, should this court formulate a judicial rule, grounded in the statute of limitations, placing some limit on the judicial extension of the statute of limitations in the case of a sealed indictment, thereby protecting a defendant from irreparable prejudice due to a delay in notification greater than the maximum delay allowed by the statute of limitations? Judge Smith and I thought it wise to define some boundary to the Government’s privilege to toll the statute of limitations by filing a sealed indictment. We therefore held that when there has been a delay which extends beyond the limitations period, a defendant proves actual and substantial prejudice attributable to the delay, and the exact time the prejudice accrued is not ascertainable, then it is inappropriate to invoke the tolling provision of United States v. Michael and it is necessary to dismiss the indictment. Our decision was that in such a case an indictment should be dismissed, as it should be in a situation in which the prejudice demonstrated is clearly attributable to the delay beyond the limitations" }, { "docid": "21893646", "title": "", "text": "NEWMAN, Circuit Judge: An indictment charging a criminal offense is subject to dismissal if it is not filed within the period of time established by the statute of limitations for that offense. Rule 6(e) of the Federal Rules of Criminal Procedure permits a district court to direct that a timely-filed indictment may be sealed until the defendant is in custody. A sealed indictment is timely even though the defendant is not apprehended and the indictment is not made public until after the end of the statutory limitations period. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950); United States v. Niarchos, 125 F.Supp. 214, 231-32 (D.D.C. 1954). When this occurs, a defendant can be expected to claim that he has suffered prejudice because of the long delay between the date of the offense charged and the unsealing of the indictment. The issue in this case is to determine the relevant period of time in which such a claim of prejudice is to be assessed. The panel that first considered this appeal held, by a divided vote, that an indictment timely filed under seal and not unsealed until after the limitations period must be dismissed whenever the defendant can show “substantial actual prejudice” occurring any time during the entire period between the date of the crime and the unsealing of the indictment. United States v. Watson, 599 F.2d 1149, 1155 (2d Cir. 1979), modified, Nos. 78-1296-8 (2d Cir. Oct. 9, 1979). Believing that prejudice had occurred because during that period the memory of appellant Muse had faded, the panel reversed his conviction. We granted a rehearing en banc because the issue presented, though arising infrequently, is important in the administration of criminal justice. We now hold that in determining prejudice to the defendant, the relevant time period is no longer than the time between the sealing of the indictment and its unsealing. Since in this case there is no basis for claiming that prejudice occurred during any of the time the indictment was sealed, we reinstate the" }, { "docid": "3330489", "title": "", "text": "standard established by Lovasco, supra. Accordingly, we hold that the delay in unsealing the indictment did not violate appellants’ due process rights. We turn, therefore, to the statute of limitations issue. The law seems clear that the filing of a sealed indictment within the statutory period serves to toll the statute of limitations even if the indictment is not unsealed until after the period has expired. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950). See 1 C. Wright, Federal Practice and Procedure § 110, at 200-01 (1969). Under Rule 6(e) of the Federal Rules of Criminal Procedure, an indictment may be kept secret until a defendant is in custody or has given bail, and in that case the clerk seals the indictment and its contents remain undisclosed except when necessary for the issuance and execution of a warrant or summons. Thus, where a defendant cannot be found, it is possible nevertheless to indict him within the period of the statute, seal the indictment, and then by virtue of the sealed indictment to arrest him when he is located. There must be limits, however, on the Government’s privilege to toll the statute of limitations by a sealed indictment. In this case, appellants argue that the Government acted unreasonably in waiting ten months beyond the limitations period before unsealing the indictment. Neither Whitley nor Watson were fugitives, the argument runs, and their whereabouts could have been determined, in Whitley’s case if the Government had known his true name “Robert” or “Charles” and in Watson’s case if it had searched a little harder. And, as noted above, the Government eoncededly knew where appellant Muse was and did not arrest him simply to avoid alerting the others. We believe that when a sealed indictment has tolled the statute of limitations, the policy of repose underlying the statute demands that the Government unseal the indictment as soon as its legitimate need for delay has been satisfied. We need not pinpoint the time at which this will occur, for it will" }, { "docid": "21893689", "title": "", "text": "404 U.S. at 324, 92 S.Ct. at 465, pre-indictment delay constitutes a due process violation only if there is substantial prejudice to the defendant and if the delay arises from the Government’s intentional effort to improve its position. See United States v. Lovasco, 431 U.S. 783, 795-96, 97 S.Ct. 2044, 2051-52, 52 L.Ed.2d 752 (1977). To be sure, a speedy trial claim may be advanced in connection with a delay after an indictment has been sealed; such a claim was made to and rejected by the original Muse panel. Although the pre-indictment period may be examined as a circumstance relevant to assessing post-indictment delay and speedy trial rights, see United States v. Vispi, 545 F.2d 328, 333 (2d Cir. 1976), only the post-indictment delay and any prejudice incident to it are strictly relevant, constitutionally speaking. The statute of limitations is, or should be, a source of protection from delay beyond the limitations period, delay consisting of both the time from the crime to the sealed indictment and the time from that indictment to the date of unsealing and notification to the defendant. Marion indicates that the overriding policy of the statute of limitations is to protect a defendant from excessive delay which undermines his ability to defend himself. Such delay, of course, terminates only when the defendant is apprised of a criminal indictment. However, Federal Rule of Criminal Procedure 6(e), which allows an indictment to be kept secret until the defendant is in custody, has been interpreted to mean that the filing of a sealed indictment within the statutory period serves to toll the statute of limitations. United States v. Michael, 180 F.2d 55, 56-57 (3d Cir. 1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950); see United States v. Watson, 599 F.2d 1149, 1154 (2d Cir. 1979) (original panel decision). An accused in appellant Muse’s position therefore cannot claim a statute of limitations bar when an indictment is filed and sealed prior to expiration of the statutory period. This leads to the ultimate question of this case: as a matter of supervisory power or otherwise," }, { "docid": "13472940", "title": "", "text": "other circuits are uniform in holding ■that “when a sealed indictment is not opened until after the expiration of the statute of limitation, the statute ordinarily is not a bar to prosecution if the indictment was timely filed.” The case law also contains a uniform exception to this rule. A sealed indictment will not relate back to the time of its filing for limitations purposes if the defendant can demonstrate that substantial actual prejudice occurred between the sealing and the unsealing. ■ ■ Nix, Gillich, and Sharpe do not assert that they have suffered any substantial actual prejudice, as the indictments were sealed for a mere six days — one before the limitation period expired and five thereafter. In stead, they insist that the indictments were sealed for improper purposes and that the government has the burden of establishing the reason for sealing the indictment. Again, the consistent and persuasive reasoning of the other circuits undermines these assertions. A judicial officer may seal an indictment under Fed.R.Crim.P. 6(e)(4), which provides: The federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons. An indictment is properly sealed when the government requests that the magistrate judge seal the indictment “for any legitimate prosecutorial objective or where the public interest otherwise requires it.” Thus, “the discretion of the district judge or magistrate to seal an indictment is broader than, merely the need to take the defendant into custody.” In addition, the magistrate judge is not required to make a contemporaneous record of the reasons for sealing the indictment, “[as] sealing in the first instance is but a ministerial act, and it is wholly within the discretion of the Magistrate whether to require the prosecutor to justify a request to seal.” Moreover, development of such a record would increase the chances of disclosure. If challenged, the" }, { "docid": "21024918", "title": "", "text": "sealing, the indictment is considered to be found upon unsealing. See id. at 40. Thus, “[i]f the Government cannot demonstrate such a prosecutorial need, the expiration of the statute of limitations prior to unsealing would invalidate the indictment as in any case where an indictment is untimely filed.” United States v. Slochowsky, 575 F.Supp. 1562, 1567 (E.D.N.Y.1983). Even where the government has legitimate interests warranting sealing of the indictment, the right of the government to seal an indictment beyond the period established by the statute of limitations is not boundless. “[W]hen a sealed indictment has tolled the statute of limitations, the policy of repose underlying the statute demands that the Government unseal the indictment as soon as its legitimate need for delay has been satisfied.” Watson I, 599 F.2d at 1154. The Watson court recognized the importance of statutes of limitations to protect against the “inevitable prejudice to the defendant occasioned by the delay.” Id. Given the “strong policy of notifying criminal defendants of the charges against them so that they may prepare a defense,” the Second Circuit held that the limitations period may be extended by sealing the indictment only within “reasonable limits.” Id. at 1155. “This standard permits an extension only to the degree necessary to accommodate the prosecutorial interests that the sealing of the indictment legitimately furthers.” Id.See also United States v. Sherwood, 38 F.R.D. 14, 18-19 (D.Conn.1964) (holding that Fed.R.Crim.P. 6(e) “is obviously intended to be exercised only for a reasonable and limited period, during which prompt government action can accomplish its clearly stated purpose”); United States v. Heckler, 428 F.Supp. 269 (S.D.N.Y.1976) (“When the defendants are available the government may not seal an indictment for more than a reasonable time after the statute of limitations has expired.”); cf. United States v. Richard, 943 F.2d 115, 119 (1st Cir.1991) (refusing to dismiss an indictment because the reasons for the delay in unsealing were legitimate prose-cutorial objectives). In this case, the government implicitly concedes that the delay in unsealing the indictment was unreasonable, admitting in its memorandum that “[i]n the present case, although a reasonable period of" } ]

[ { "docid": "15900112", "title": "", "text": "if anything, would you have done if you had known or been warned that there was any danger there; any blasting there that would have been likely to endanger your life?” AVith the answer that was wanted thus clearly indicated, the plaintiff answered: “I would have went off, I suppose, if they had made it clear my life was in danger. I think a man naturally would go any place.” Upon the second trial, and before there had been any suggestion that the plaintiff might have found a place safer than the boat’s cabin by going ashore or to the lower deck, one of plaintiff’s attorneys, in his opening argument to the jury, anticipating the defense of contributory negligence, said: ‘Where could he have gone if this alarm of fire had been heard by plaintiff, and this was not a place of safety? Where would he go, * * * where would he be, not to be guilty of negligence, except in the cabin of the boat?” These facts show that the plaintiff believed himself to be exercising due care for his own safety in going into the cabin of the boat and remaining there, with knowledge of the blasting on the outside, and that he adhered to that belief in the earlier stages of the case; and I am of the opinion that, inasmuch as the other passengers acted as he did, he was justified in that belief, since ordinary care is such care as the great majority of men would exercise in like circumstances. The plaintiff’s conduct in this respect was not affected by the question of separate notices of different blasts. If he did not know that there was to be a succession of blasts, nevertheless he remained during all the blasting in the place where he was when the first blast was fired. It is clear, therefore, that if the defendants failed in any duty that was imposed upon them, to the plaintiff’s injury — and the fact that the case was remanded for another trial has the effect of a determination that the jury would" } ]

[ { "docid": "16243663", "title": "", "text": "“Confusion exists in statements of the legal basis of liability as applied to the law of nuisance because the term ‘nuisance’ has been used indiscriminately to designate the harmful results, * * * .” Taylor v. City of Cincinnati, 1944, 143 Ohio St. 426, 55 N.E.2d 724, 729. The American courts have shown a deplorable tendency to call everything a nuisance, and let it go at that. Strictly speaking “nuisance” has reference to the typo of interest invaded and not to any particular type of conduct from which the invasion results. A nuisance, therefore, may be created by conduct which is intended to inflict harm, by negligence or, in many cases by an extrahazardous activity. See Scope and Introduction Note to Chapter 40, Restatement, Torts (1939). “The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.” Holmes, The Common Law (1938) p. 154. “It [Rylands v. Fletcher] recognizes degrees in dangers, no action is prohibited unless it is immediately injurious to the person or property of another or so dangerous as to actually affect the value of his property, but at the same time it recognizes that there are certain dangerous activities which, while the dangers incident thereto are not so great as to require their prohibition, should be carried on only at the risk of him who profits by them.” Bohlen, Studies in the Law of Torts (1926) p. 416; see Stally-brass, Dangerous Things and the Non-Natural User of Land, 3 Camb.L.J. 376, 387 (1929). See the well considered language in Exner v. Sherman Power Const. Co., 2 Cir., 1931, 54 F.2d 510, 80 A.L.R. 686. Taylor v. City of Cincinnati, 1944, 143 Ohio St. 426, 55 N.E.2d 724. “This is the doctrine of the early case of Rylands v. Fletcher (1868) L.R. 3 H.L., 330, 37 L.J.Ex., 161, 19 L.T.Rep., 220, 33 J.P. 70, which, with modifications, has been adopted as the common-law rule in many jurisdictions of this country. The rule" }, { "docid": "19312587", "title": "", "text": ".in order to sustain an action for a tort, the damage complained of must come from a wrongful act. In Addison on Torts, vol. 1, p. 3, the law is stated as follows: “A man may, however, sustain grievous damage at the hands of another, and yet if it be the result of inevitable accident, or a lawful act, done in a lawful manner without any carelessness or negligence, there is no legal injury and no tort giving rise to an action for damages.” We are unable to discover that either the railroad company or the powder company or the contractor Healing, or any of the employés of either, committed any wrongful act which caused this explosion. At the time of the explosion the dynamite was in the course of transportation. A common carrier must transport freight of this character over its line, and the doctrine of Rylands v. Fletcher, if applicable at all, cannot be applied to cases of this nature. We think there can be no doubt, so far as a common carrier is concerned, that such danger as necessarily results to others from the performance of its duty, without negligence, must be borne by them as an unavoidable incident of the lawful performance of legitimate business. Indeed, in Rylands v. Fletcher the opinion of Blackburn, Judge in the Court of Exchequer Chamber, concedes this, for he says: “Traffic on tbe highways, whether by land or sea, cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and, that being so, those who go on the highway or have their property adjacent to it may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger; and persons who by the license of the owner pass near to warehouses where goods are being raised or lowered certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning' the accident.” It certainly would be an extraordinary doctrine for" }, { "docid": "14913126", "title": "", "text": "BEN MOORE, Chief Judge. The plaintiff in these two cases, which have been consolidated, bring their actions seeking to recover for damage to their dwelling houses which they allege resulted from concussions and vibrations from defendant’s blasting operations in connection with the construction of the Kanawha County Airport, near Charleston, West Virginia. No allegation of negligence appears in the complaints. Defendant moves to dismiss the complaints on the ground that they do not state a cause of action. The motion presents the question: Is a person who intentionally sets off a dynamite blast in the conduct of a lawful blasting operation absolutely liable for damage to houses (however distant from the scene of the blast), or must the plaintiff as a condition precedent to recovery allege and prove some act of negligence on the part of the person responsible for the blasting? It is, of course, the duty of the Court, following the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to apply the law of the State of West Virginia to the problem posed by the question, if an answer can be found in any of the cases decided by the Supreme Court of Appeals of that State. However, counsel have cited no West Virginia cases, and I have been able to find none, which could be said to be squarely in point. The only case in which the facts are closely similar to those of the instant case is that of Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766. Unfortunately for the purpose here, the West Virginia Supreme Court in that case did not purport to lay down any West Virginia rule but applied the law of Ohio in imposing absolute liability without requiring allegation or proof of negligence. A few other West Virginia cases approach but do not touch the question. For example, in the case of Wilson v. Phoenix Powder Manf’g Co., 40 W.Va. 413, 21 S.E. 1035, 52 Am.St.Rep. 890, the Court imposed absolute liability on the owner of a powder mill which" }, { "docid": "14913130", "title": "", "text": "rights of way, have cast rocks and debris upon adjoining lands, the Court has held that such damage was necessarily taken into consideration in fixing the award for the condemned lands (the measure being the value of the land taken and damages to the residue), and that removal of the rocks and debris within a reasonable time would absolve the contractor from liability. Watts v. Norfolk & W. R. Co., 39 W.Va. 196, 19 S.E. 521, 23 L.R.A 674, 45 Am.St.Rep. 894; Gordon v. Elmore, 71 W.Va 195, 76 S.E. 344. Other cases involve personal injuries received from unexpected explosions and are distinguishable on their facts. See Schwartz v. Shull, 45 W.Va 405, 31 S.E 914; State ex rel. Bennett v. Sims, W.Va. 1948, 48 S.E.2d 13. Nowhere in the cases have I found any judicial recognition of a distinction between the accidental explosion of dynamite or other accidental release of dangerous forces and the intentional setting off or release of such forces; yet as I see it, there is a substantial difference between the two' situations. Such dangerous instrumentalities as dynamite, being useful, if not indispensable, in many commercial and indus trial pursuits, must be kept and stored. It may be reasonable to conclude, as many courts have done, that in cases of accidental explosion liability depends on failure to exercise due care in keeping and storing the explosive. On the other hand, when one intentionally sets off a charge of dynamite, he thereby looses for a destructive purpose (albeit a proper and lawful purpose) those very forces which are known to be dangerous to any person or property which may be within the radius of the concussions and vibrations produced by the blast. This distinction must, in my opinion, be given weight in deciding the question here propounded. In two West Virginia cases dealing with damage caused by bursting water tanks, the Court goes far towards establishing a rule of absolute liability, even where the dangerous force is released accidentally and not intentionally. Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A.,N.S., 1061; Wigal," }, { "docid": "14913135", "title": "", "text": "case of accidental explosion of dynamite, rather than intentional blasting, Judge A. N. Hand of the Second Circuit Court of Appeals in the opinion states the principle which he concluded, and which I believe, is applicable to both types of explosion. The case was decided prior to Erie Railroad Co. v. Tompkins and was therefore not based on any considerations of State law. I quote as follows from the opinion: “It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care. (Citing cases.) Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis. (Citing cases.) “We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: ‘The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.’ ” I have found no other case which could be said to have" }, { "docid": "14913131", "title": "", "text": "two' situations. Such dangerous instrumentalities as dynamite, being useful, if not indispensable, in many commercial and indus trial pursuits, must be kept and stored. It may be reasonable to conclude, as many courts have done, that in cases of accidental explosion liability depends on failure to exercise due care in keeping and storing the explosive. On the other hand, when one intentionally sets off a charge of dynamite, he thereby looses for a destructive purpose (albeit a proper and lawful purpose) those very forces which are known to be dangerous to any person or property which may be within the radius of the concussions and vibrations produced by the blast. This distinction must, in my opinion, be given weight in deciding the question here propounded. In two West Virginia cases dealing with damage caused by bursting water tanks, the Court goes far towards establishing a rule of absolute liability, even where the dangerous force is released accidentally and not intentionally. Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A.,N.S., 1061; Wigal, Adm’x v. City of Parkersburg, 74 W.Va. 25, 81 S.E. 554, 52 L.R.A.,N.S., 465. While both these cases appear on their face to have been decided by the application of res ipsa loquitur as a rule of evidence, yet in the latter case the Court held that no degree of care 'shown by the defendant could relieve it from liability, and that in such cases nothing short of proof that the bursting of the tank was due to an act of God or a clandestine hand could excuse the defendant from liability; and in both cases instructions offered by the defendants which would have submitted the question of negligence to the jury were held to have been properly refused. This is little, if any, different from the conclusions of those courts which follow the doctrine of absolute liability in similar situations. If these cases are interpreted as imposing absolute liability, whether designated as such or not, they furnish sufficient authority a fortiori to sustain this Court in adhering to that rule in the instant case." }, { "docid": "14913128", "title": "", "text": "accidentally exploded, causing damage, giving as its reason that, as the mill was situated in a populous locality, it constituted a public nuisance. There are dicta in the opinion indicating the Court’s view that had the mill been located in a secluded spot, there could have been no recovery in the absence of proof of negligence. The West Virginia Supreme Court of Appeals has refused in a number of cases of boiler explosions to allow recovery in the absence of proof of negligence, unless the boilers are shown to constitute nuisances; see Veith v. Hope Salt & Coal Co., 51 W.Va. 96, 41 S.E. 187, 57 L.R.A. 410; Findley, Adm’r v. Coal & Coke Railway Co., 72 W.Va. 268, 78 S.E. 396; but these decisions appear to be predicated on the principle that the millions of boiler users throughout the country should not be made insurers against latent defects in the manufactured boilers. Another case in which the West Virginia Supreme Court of Appeals declined to apply the doctrine of absolute liability where injuries are caused by dangerous instrumentalities, is that of Vaughan v. Miller Bros. “101” Ranch Wild West Show, 109 W.Va. 170, 153 S.E. 289, 69 A.L.R. 497. In this case plaintiff was standing near a wild animal which was being exhibited in a cage in a circus menagerie, and he having his hand within reach of the animal, his finger was seized and bitten off. The Court, after reviewing the trend of English and American authorities, concluded that' the mere keeping of a wild animal is not enough to impose liability on the keeper, but that there must be some neglect properly to restrain it if the owner is to be held liable in damages. It is to be noted that in this case the plaintiff was seeking to recover for personal injuries received after he had placed himself in a position of known peril. The cases in this State involving blasting or explosions of dynamite are of little aid to the Court in reaching a proper conclusion in the instant case. Where railroads, in grading condemned" }, { "docid": "8518449", "title": "", "text": "BAKER, Chief Judge. This action is based upon alleged damages caused to the property of the plaintiff by the defendant. It is claimed that this damage resulted when the defendant blasted with dynamite on defendant’s property and the concussion therefrom injured the plaintiff’s property. There is no allegation that the blasting cast any rocks -or other debris upon the plaintiff’s property. The complaint sets forth three causes of action; first, it alleges that the defendant was negligent in its blasting operations and so- injured the plaintiff; second, it alleges that the defendant, even though not negligent, used such a dangerous instrumentality that he is liable to- the plaintiff in the absence of proof of negligence; third,' it alleges that the defendant’s conduct constituted a nuisance. The defendant has filed a motion to- dismiss. The defendant first asserts that the complaint does not comply with the Federal Rules of Civil Procedure, 28 U.S.C.A., in that it sets forth three separate causes of action. I feel that the complaint complies with Rule 8 of the Rules of Civil Procedure in all essential respects. Second, the defendant asserts that the cause of action at the time the suit was instituted was barred by the Statute of Limitations. This being an injury to real property, the one-year Statute of Limitations does not apply, and I hold that this action was instituted within the time permitted by West Virginia law. The third and principal attack upon the complaint goes to the theory alleged in the second and third causes of action, that the defendant is liable even if he acted without negligence. There is a division of judicial opinion among the courts of this country on this question. Counsel for the defendant and for the plaintiff have each cited numerous cases from other states, which sustain their respective positions. However, counsel were unable to find any West Virginia case directly in point, and my own research has not dis closed such a case. Therefore, under the rule in the case of Erie Railway Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 118," }, { "docid": "14913129", "title": "", "text": "caused by dangerous instrumentalities, is that of Vaughan v. Miller Bros. “101” Ranch Wild West Show, 109 W.Va. 170, 153 S.E. 289, 69 A.L.R. 497. In this case plaintiff was standing near a wild animal which was being exhibited in a cage in a circus menagerie, and he having his hand within reach of the animal, his finger was seized and bitten off. The Court, after reviewing the trend of English and American authorities, concluded that' the mere keeping of a wild animal is not enough to impose liability on the keeper, but that there must be some neglect properly to restrain it if the owner is to be held liable in damages. It is to be noted that in this case the plaintiff was seeking to recover for personal injuries received after he had placed himself in a position of known peril. The cases in this State involving blasting or explosions of dynamite are of little aid to the Court in reaching a proper conclusion in the instant case. Where railroads, in grading condemned rights of way, have cast rocks and debris upon adjoining lands, the Court has held that such damage was necessarily taken into consideration in fixing the award for the condemned lands (the measure being the value of the land taken and damages to the residue), and that removal of the rocks and debris within a reasonable time would absolve the contractor from liability. Watts v. Norfolk & W. R. Co., 39 W.Va. 196, 19 S.E. 521, 23 L.R.A 674, 45 Am.St.Rep. 894; Gordon v. Elmore, 71 W.Va 195, 76 S.E. 344. Other cases involve personal injuries received from unexpected explosions and are distinguishable on their facts. See Schwartz v. Shull, 45 W.Va 405, 31 S.E 914; State ex rel. Bennett v. Sims, W.Va. 1948, 48 S.E.2d 13. Nowhere in the cases have I found any judicial recognition of a distinction between the accidental explosion of dynamite or other accidental release of dangerous forces and the intentional setting off or release of such forces; yet as I see it, there is a substantial difference between the" }, { "docid": "3018239", "title": "", "text": "258 F. 109, and eases cited. Dynamite is of the class of elements which one who stores or uses in such a locality, or under such circumstances as to cause likelihood of risk to others, stores or uses at his peril. He is an insurer, and is absolutely liable if damage results to third persons, either from the direct impact of rocks thrown ont hy the explosion (which would be a common-law trespass) or from concussion. For the reasons already given in discussing the Vermont statute, we assume that the storage of dynamite in the ease at bar was not an act of which the plaintiffs could complain. There was uneontradieted proof that the place of storage and the quantities stored were approved by the deputy fire marshal of the state. While such approval would be no protection against claims of persons inhabiting dwellings within the prescribed zone, the plaintiffs were not of that class and could not have enjoined the storage. The liability of the defendant is not founded on illegal storage or on negligence, which was not proved, but upon the ground that the use of dynamite is so dangerous that it ought to be at the owners’ risk. In Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St. 560, 54 N. E. 528, 45 L. R. A. 658, 71 Am. St. Rep. 740, the defendant manufactured and stored nitroglycerine which exploded and caused damage to the plaintiff. The Supreme Court of Ohio held that the defendant was liable though there was no proof of negligence. To the same effect was the decision in French v. Center Creek Powder Mfg. Co., 173 Mo. App. 220, 158 S. W. 723. These cases followed Rylands v. Fletcher, L. R. 3 H. L. 330, which has found considerable explicit support in this country in the following decisions: Brennan Construction Co. v. Cumberland, 29 App. D. C. 554, 15 L. R. A. (N. S.) 535, 10 Ann. Cas. 865; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; Mears v. Dole, 135 Mass. 508; Cahill v. Eastman," }, { "docid": "16243664", "title": "", "text": "in dangers, no action is prohibited unless it is immediately injurious to the person or property of another or so dangerous as to actually affect the value of his property, but at the same time it recognizes that there are certain dangerous activities which, while the dangers incident thereto are not so great as to require their prohibition, should be carried on only at the risk of him who profits by them.” Bohlen, Studies in the Law of Torts (1926) p. 416; see Stally-brass, Dangerous Things and the Non-Natural User of Land, 3 Camb.L.J. 376, 387 (1929). See the well considered language in Exner v. Sherman Power Const. Co., 2 Cir., 1931, 54 F.2d 510, 80 A.L.R. 686. Taylor v. City of Cincinnati, 1944, 143 Ohio St. 426, 55 N.E.2d 724. “This is the doctrine of the early case of Rylands v. Fletcher (1868) L.R. 3 H.L., 330, 37 L.J.Ex., 161, 19 L.T.Rep., 220, 33 J.P. 70, which, with modifications, has been adopted as the common-law rule in many jurisdictions of this country. The rule in question, which, is being gradually narrowed in scope, has been considered and, in proper cases, applied to situations involving the maintenance of artificial reservoirs for the collection of water as distinguished from mill dams across flowing streams; the storing or use of dangerous combustibles, such as dynamite, nitroglycerin, gun powder, etc.; blasting operations on one’s own land adjacent to the premises of another; and trespasses due to the escape of wild animals, as distinguished from • domestic animals.” 1944, 143 Ohio St. 426, 435, 55 N.E.2d 724, 728. Langabaugh v. Anderson, 1903, 68 Ohio St. 131, 67 N.E. 286, 62 L.R.A. 948. “§ 520. Definition of Ultrahazardous Activity. “An activity is ultrahazardous if it “(a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and “(b) is not a matter of common usage.” Restatement, Torts (1938) § 520. Thus the cases cited by the defendants to the effect that storage of a certain substance does not bring" }, { "docid": "13412067", "title": "", "text": "there were three options available for determining whether subsidence was a factor along the proposed route: researching available geologic information, test drilling the soil, or using seismic refraction surveys conducted by means of dynamite blasts. In this case, the Chief of the Geology and Exploration Branch of the Bureau of Reclamation chose to investigate subsidence by using the dynamite blast option, giving as his reasons that blasting was less expensive and less time-consuming than drilling. The record does not indicate what, if any, factors the construction industry generally considers in deciding which methods to use in determining subsidence. The government proceeded in 1984 to blast in the area of appellant’s wells. The blasting damaged appellant’s domestic water system, including extensive damage to at least one of appellant’s wells. Appellant sued under the Federal Tort Claims Act. Its complaint alleged first that the government was negligent in using the blasting method to determine subsidence when other available methods would have provided adequate information with less risk. In addition, appellant claimed that the government negligently used too much dynamite when it blasted, resulting in damage to appellant’s water system. It alleged damages in excess of $4,000,000. The government moved for summary judgment on the ground that its decision to use dynamite blasting, and the manner in which the blasting was conducted, were within the FTCA’s discretionary function exception which shields the government from liability. The district court granted the government’s motion, holding that because the government employee had a choice as to how to proceed, both the decision to use dynamite and its implementation were discretionary functions. We have held that review of a district court determination of subject matter jurisdiction under the discretionary function exception is de novo. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986), cert. denied, — U.S. —, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987). DISCUSSION The FTCA is a broad authorization for suits against the United States for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting" }, { "docid": "17884709", "title": "", "text": "Rep. 329. While a railroad company has the right to blast rock from its right of way by means of gunpowder or dynamite, it has no right, without warning, to throw rocks upon persons who are lawfully occupying or using neighboring property, and such an act is a trespass. Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Wright v. Compton, 53 Ind. 337; St. Peter v. Denison, 58 N. Y. 416, 423, 17 Am. Rep. 258; Colton v. Onderdonk, 69 Cal. 155, 159, 10 Pac. 395, 58 Am. Rep. 556. It is, however, the duty of one who is lawfully using neighboring property, and who is warned of a coming explosion by another, who is rightfully engaged in blasting, to use reasonable diligence to escape from danger from the approaching explosion; and a failure to exercise such care, which concurs in producing his injury, waives the right of action for the trespass, constitutes contributory negligence, and is fatal to an action for the recovery of damages on account of the injury. Sullivan v. Dunham, 10 App. Div. 438, 440, 41 N. Y. Supp. 1083; Wright v. Compton, 53 Ind. 340, 341; Graetz v. McKenzie (Wash.) 35 Pac. 377, 378; Mills v. Wilmington City Ry. Co. (Del. Super.) 40 Atl. 1115; 2 Shearman & Redfield on Law of Negligence, § 688a. In the case at bar, therefore, the defendants had the right to remove the ledges and rocks from the right of way of the railroad company by explosions of gunpowder or dynamite. The decedent, Morrison, had the right to walk along the bank of the river for the purpose of accompanying the boat to its starting point, and crossing upon it to the opposite side. It was the duty of the defendants to warn Morrison and every other person within the circle of danger of the coming explosion they were about to cause. It was the duty of Morrison and ol every one thus warned" }, { "docid": "8906158", "title": "", "text": "and, in smaller print on two sides, was placed the warn ing: “Caution. Do not Inhale Fumes. Use only in well-ventilated place.” The issue left for the jury was whether defendant had given an adequate warning to probable users of the danger inherent in the fluid’s normal use. The jury found for the plaintiff, and the Supreme Court of Pennsylvania affirmed, stating that it was clear that the trial court could not say as a matter of law that defendant had fulfilled its duty to warn. The Maize case stands for the proposition that one who supplies an instrumentality for use by others, and who knows or should know that the foreseeable use is dangerous to human life unless certain precautions are taken, and who realizes or should realize that the probable user will not recognize the danger, is under a duty to warn the user of such danger and to advise the proper precautions. The Maize case is even stronger than the present case because there the defendant actually did warn of the specific danger involved. The question was whether the warning was sufficiently prominent. Here there was no warning at all of the specific risk. Defendant attempts to parry the thrust of the rule of the Maize case by saying that it is inapplicable here. Defendant tells us that everybody knows that dynamite is dangerous and that there is no need to warn against the obvious. But plaintiff’s theory does not go to the generally dangerous character of dynamite. She contends that what is not known by blasting workers is that there is enough heat and vibration in a freshly drilled hole, when a drill is being operated a few feet away, to explode the dynamite placed in the hole. Everybody knows that dynamite should not be thrown in a fire, but apparently most construction workers do not know that it should not be placed in a hole under the conditions existent in this case. One Keller, a blasting foreman for Langenfelder, with twenty-five years’ field experience in working with dynamite but with no technical schooling on explosives," }, { "docid": "14913136", "title": "", "text": "people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis. (Citing cases.) “We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: ‘The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.’ ” I have found no other case which could be said to have established a Federal rule. There are cases in which the plaintiff sustained personal injuries from exploding dynamite, after exposing himself to the danger, known by him to exist. In these cases, it is taken for granted that negligence on the part of the person setting off the blast must be alleged and proved. Cary Bros. & Hannon v. Morrison, 8 Cir., 1904, 129 F. 177, 65 L.R.A. 659; Smith v. Day, C.C.D.Or.1905, 136 F. 964. I am impressed with Judge Hand’s reasoning, and regard the law of the Exner case as being especially applicable to present day conditions, when major improvements are being effected in already overcrowded localities. The use of dynamite in blasting is a well-recognized practice, but the injurious results often occasioned thereby are equally well known. Any person who uses it in such manner as to cause damage to his neighbor must be held absolutely liable therefor. The motions to dismiss the complaints in each case are overruled." }, { "docid": "3018247", "title": "", "text": "Justice Holmes has said in The Common Law, p. 154: “The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.” Frequently as much as one thousand pounds of dynamite were stored by the defendant near a group of dwellings, factories, and a hotel. The fact that the explosion was severe enough to kill three men, blow up the hut, unsettle and damage the plaintiff’s house, over nine hundred feet away, and that evenj then, one hundred pounds of dynamite still remained unexploded, shows that there must have been a large amount of dynamite in or about the hut at the time of the accident. When a person engages in such a dangerous activity, useful though it be, he becomes an insurer. Furthermore, the imposition of absolute liability is not out of accord with any general principles of law. As Professor Holds-worth has said: “The dominant idea of Anglo-Saxon law” was “that man acts at his peril.” 2 History of English Law, 42. See, also, Pollock on Torts (10th Ed.) 15. Accordingly the earlier forms of action such as trespass and trespass quare clausum fregit allowed recovery for a direct invasion of person or property without regard to fault. After the later action “sur case” arose, there was a growing tendency to excuse an act causing damage if the defendant was without fault. But, in trespass, fault ordinarily remained a matter of no consequence, and even in cases of damage to the person'the early decisions prior to Brown v. Kendall, 6 Cush. (60 Mass.) 292, seemed to have imposed liability where there was no negligence. Dickenson v. Watson, T. J ones, 205. Although liability for injury to the person has not in most instances survived except where there has been fault, there still remains absolute liability for trespasses to real estate and for actionable wrongs committed by servants no matter how carefully they are selected by the master. The extent to which one man in" }, { "docid": "3018246", "title": "", "text": "L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198; Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N. E. 970, L. R. A. 1915E, 356, Ann. Cas. 1916C, 1171; Hickey v. McCabe & Bihler, 30 R. I. 346, 75 A. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783; Feinberg v. Wisconsin Granite Co., 54 S. D. 643, 224 N. W. 184; Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L. R. A. (N. S.) 740; Schade Brewing Co. v. C., M. & St. P. Ry. Co., 79 Wash. 651, 140 P. 897. We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: “The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.” Frequently as much as one thousand pounds of dynamite were stored by the defendant near a group of dwellings, factories, and a hotel. The fact that the explosion was severe enough to kill three men, blow up the hut, unsettle and damage the plaintiff’s house, over nine hundred feet away, and that evenj then, one hundred pounds of dynamite still remained unexploded, shows that there must have been a large amount of dynamite in or about the hut at the time of the accident. When a person engages in such a dangerous activity, useful though it be, he becomes an insurer. Furthermore, the imposition of absolute liability is not out of accord with any general principles of law. As Professor Holds-worth has said: “The dominant idea of Anglo-Saxon law”" }, { "docid": "3018249", "title": "", "text": "the lawful conduct of his business is liable for injuries to another involves an adjustment of conflicting interests. The solution of the problem in each particular case has never been dependent upon any universal criterion of liability (such as “fault”) applicable to all situations. If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss. The blasting cases seem to afford ample analogies and to justify this conclusion. Our decision in Actiesselskabet Ingrid v. Central R. R. of N. J., 216 F. 72, L. R. A. 1916B, 716, is relied on by the defendant. There a car of dynamite in the New Jersey freightyard of the respondent exploded without negligence on its part and destroyed the libelant’s vessel. The libel was dismissed. While the opinion generally disapproved of Fletcher v. Rylands, the decision rested mainly on the ground that the respondent was a common carrier, was obliged to take such freight, and was therefore not liable if it stored it properly and had committed no acts of negligence. See, also, Henry v. Cleveland, C. C. & St. L. Ry. Co. (C. C.) 67 F. 426. It is argued that transportation of the dynamite through the town in small quantities would have increased the risk to the public. This seems to be true, and no reason is shown for taking such a course, because it would have added to the danger without relieving the defendant from absolute liability, had an explosion occurred while the dynamite was on the way. In the case-at bar, the court decided that the Yermont statute made the storage illegal and afforded the plaintiffs a remedy. With this we differ, for the reasons already stated. Nevertheless, as we hold" }, { "docid": "11127097", "title": "", "text": "court to require plain tiffs to elect on which count of their respective complaints they sought to rely — ■ either on the specific acts of negligence charged,in Count 1, or on, the doctrine of res ipsa loquitur charged in Count 2. The court overruled the Government’s motions made at the close of the plaintiffs’ case, but the Government renewed them at the close of the trial and the court reserved a final ruling thereon. A review of the entire record compels the present conclusion that the Government’s motion to dismiss as to Count 1 of the plaintiffs’ respective complaints should be sustained, as the plaintiffs have failed to establish their respective burden in proving specific acts of negligence. • I am also constrained to sustain the Government’s motion to dismiss as to Count 2 of these complaints for the reason that the wrongful acts complained of therein come squarely within the meaning of Section 2680(a), Title 28 U.S.C.A., when applied to the facts in these cases. Plaintiffs under this record, it is true, succeeded in establishing to the court’s,satisfaction their burden of proving that their properties were damaged by reason of the blasting operations in question and that the injuries to these properties so suffered proximately resulted from these blasting operations. In the absence therefore of the application of Section 2680(a), supra, a recovery in some amount would of necessity have followed in each case, since it is fundamental that under the substantive law of Iowa dynamite is a dangerous instrumentality, the use of which, so as to damage the property of another, constitutes a wrongful act for which recovery may be had, even without a specific charge of negligence or the proof thereof. Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188; and see annotation 92 A.L.R. 741. Unless the pleadings show upon their face the applicability of the “discretionary function” exception contained in Section 2680(a), supra, the same must be raised by way of an affirmative defense and- the burden therefore devolves upon the Government to establish its applicability. In the instant situation, it" }, { "docid": "4011026", "title": "", "text": "liability may exist in the case of a child of tender years which would not exist in the case of a child of more mature years, it is well settled that one who keeps or uses explosives owes a duty, especially to young children who cannot be expected to know and appreciate the danger, to exercise care commensurate with the danger to prevent injury to children who may have access to, or come in contact with, explosives. Thus it has been broadly stated that it is a breach of duty to leave or to store explosives accessible to children who are lawfully on the premises, or whose presence there should be anticipated. 22 Amer. Jur. 139. See, also Annotations in 43 A.L.R. 435, 49 A.L.R. 160 and 100 A.L.R. 452.” Again, in Tayloe v. Southern Bell Telephone & Telegraph Co., 258 N.C. 766, 129 S.E.2d 512, at 514, the Court said; “To discard or leave a dynamite cap where either a child or an unversed adult might pick it up and cause it to explode is positive negligence. Both the common law and the statutes of North Carolina require persons having possession and control of dynamite to use the highest degree of care to keep the explosives safe and secure and to guard others against injury from it. Only the highest degree of care is commensurate with the dangerous nature of dynamite.” When practice bombs of the type used are dropped, it must have been well known to the Navy some of them would not detonate. They knew the public frequented the Range. The Navy made no effort to prevent persons from going upon the Range. In fact, during the time it was in active use, it gave permission for persons to roam the Range. Persons were known to carry cf. the bombs. On some occasions the Navy personnel checked the bombs being carried cf. by the relic hunters and permitted them to carry them away. It seems to have been well understood that except during actual bombing practice, persons roamed the Range as they desired. It seems to have" } ]

[ { "docid": "11156566", "title": "", "text": "it is not necessary to have one for the reason that findings should cover the ultimate facts and not be labored with evidentiary matters and theories of the lawyers. In re Imperial Irrigation District, D.C.S.D.Cal. 1941, 38 F.Supp. 770; Louisville Taxicab & Transfer Co. v. Yellow Cab Transit Co., D.C.W.D.Ky.1944, 58 F.Supp. 950; Parker v. St. Sure, 9 Cir., 1931, 53 F.2d 706. In view of the foregoing, I conclude that in this case the undersigned judge has the power under rule 63 to perform the duty of signing the formal judgment. For the same reasons I also conclude that in the exercise of the discretion conferred by the last clause of rule 63 it is appropriate and proper that I should sign the judgment. It is unnecessary that I also sign the submitted findings and conclusions. In fact it would be improper for me to do so as Judge Black was the one who heard the evidence and saw the witnesses and the exhibits. It is and was his decision. Giffin v. Vought, 2 Cir., 1949, 175 F.2d 186. My only function is to determine whether or not the power exists and if I should exercise it by signing the judgment, which I am doing concurrently herewith. . duly and regularly assigned to sit and hold court in this district pursuant- to the orders of Chief Judge, William Denman of the Ninth Circuit dated August 4, 1950 and of Acting CMef Judge Clifton Mathews dated September 15, 1950, as provided by 28 U.S.C.A. § 292(b). . In the Petition of Garcia, D.C.W.D.Pa. 1946, 65 F.Supp. 143, Judge Gourley disposed of a naturalization matter after the death of the judge -who had not made formal findings and conclusions; and in The Del-Mar-Va., D.C.E.D.Va.1944, 56 F.Supp. 743, Judge Wyche disposed of the admiralty matter there involved by signing formal findings and decree after tbe death of Judge Way, who had not done so but had filed an informal memorandum. It is noted that Admiralty Rule 461/2, 28 U.S.C.A., requiring findings does not have the provision therein which is found in Fed.Rules" } ]

[ { "docid": "17186674", "title": "", "text": "discrimination-skewed composition of its workforce, the sooner it can again devote its full energies to binding books. . See, e.g., Blumrosen, Wage Discrimination and Job Segregation: The Survival of a Theory, 14 U.Mich.J.L.Ref. 1 (1980); Blumrosen, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, 12 U.Mich.J.L. Ref. 397 (1979); Gift & Gelb, Beyond the Equal Pay Act: Expanding Wage Differential Protections Under Title VII, 8 Loy.Chi.L.J. 723 (1977); Nelson, Opton & Wilson, Wage Discrimination and the Comparable Worth Theory in Perspective, 13 U.Mich.J.L.Ref. 231 (1980); Note, The Bennett Amendment — Title VII and Gender-Based Discrimination, 68 Geo.L.J. 1169 (1980). . One other female apprentice, Mary Lovely, spent one week in the Bindery. There is dispute about why she left. GPO contends that she requested reassignment because she preferred a cleaner and better paying section of the production department, and that her original assignment to the Bindery had been a clerical error. GPO Brief at 12. Ms. Lovely testi-tied that she had been repeatedly told during her week in the Bindery that it was not a place for a woman. Tr. Mar. 16, 1979, at 5. . Some women have been promoted in the Bindery since the district court judgment in this case. See Washington Post, Nov. 12, 1981, § D.C. at 1, col. 1. . See, e.g., Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977). See generally 7 J. Moore, Federal Practice j| 63.05 (2d ed. 1979); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2922 (1973). It may be the duty of the trial judge even with the parties’ consent to decision without retrial if the credibility of witnesses is in question. See Federal Deposit Ins. Corp. v. Siraco, 174 F.2d 360 (2d Cir. 1949). . Rule 52 requires the court to “find the facts specially and state separately its conclusions of law thereon ...” but does not require that they be stated in writing. Moore poses the hypothetical of what a successor judge may do when his predecessor issues oral findings of fact and conclusions" }, { "docid": "17186583", "title": "", "text": "relief in this complex fact situation. We affirm the structure in its basic outlines, including the method for calculating and sharing back pay and front pay. We reverse and remand, however, with directions concerning certain aspects of the relief. First, the district court is directed to calculate the front pay pool as a continuation of the back pay pool, mirroring the back pay formula. Second, the district court is directed to set a more limited outside termination date for GPO’s obligation to pay front pay. Third, the district court is directed to construct a front pay pool to compensate prevailing Equal Pay Act plaintiffs for the denial of supervisory opportunities, analogous to the back pay pool set up for them. Finally, the injunctive decree is remanded, with directions to the district court to fashion more limited craft training and supervisory hiring goals, within guidance provided by this opinion. III. THE CLAIM UNDER THE EQUAL PAY ACT A. Procedural Preliminaries Two preliminary procedural difficulties with the Equal Pay Act claim can be handled quickly. GPO contends that Judge Richey erred in ordering a new trial on the Equal Pay Act issues, rather than entering judgment for GPO on the basis of Judge Waddy’s oral ruling. Plaintiffs contend that Judge Richey erred in following Judge Waddy’s decision not to order notice of the Equal Pay Act claims to class members or to allow filing of consents retroactive to the initial date of filing. Record (R.) 218A, J.A. 158. We affirm Judge Richey on both points. 1. The Retrial. At the close of the plaintiffs’ case in the first trial, Judge Wad-dy dismissed the claim for relief under the Equal Pay Act on GPO’s motion pursuant to Fed.R.Civ.P. 41(b) (allowing dismissal if upon the facts and the law the plaintiff has shown no right to relief). Judge Waddy’s ruling from the bench was accompanied by a definition of the plaintiffs’ Equal Pay Act burden and oral “findings of fact,” and a promise to reduce both to writing. Tr. Mar. 28, 1978, at 2-14, J.A. II, 1-13. GPO complains that Judge Richey was obligated" }, { "docid": "17186591", "title": "", "text": "that Judge Waddy committed reversible error in refusing to order that Rule 23(d) notice of the pendency of the Equal Pay Act claims be sent. We therefore uphold Judge Richey’s refusal to depart from the “law of the case” in this instance. B. Liability Under the Equal Pay Act An employer violates the Equal Pay Act by paying unequal wages for “equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1) (1976). Determination that an Equal Pay Act violation has occurred involves both a legal and a factual problem. The legal issue is the standard of equality to be applied under the Act. The factual issue is whether the jobs in question met the standard, and the burden of proof is on plaintiffs to show that they did. Coming Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 448 (D.C.Cir.1976). Once plaintiffs meet their burden, the burden then shifts to defendants to show that the pay differential was justified under one of the exceptions to the Act, Corning Glass, 417 U.S. at 205, 94 S.Ct. at 2233; Laffey, 567 F.2d at 448. With respect to plaintiffs’ burden, GPO alleges both that the trial judge employed the wrong legal standard and that his finding that plaintiffs had met their burden for operators of the Smyth sewing machine was clearly erroneous. GPO also claims to have rebutted plaintiffs’ case by showing that traditional industry classifications and training requirements justified the differential. The plaintiffs contend that they met their burden not only as to the Grade 4 bindery workers, but with respect to other bindery workers whose Equal Pay case was unsuccessful in the district court: The over-sewer and Singer machine operators, hand-workers, and passport inspectors. 1. The Legal Standard. Like most legislation, the Equal Pay Act of 1963 was a compromise. Congress for several years had considered competing versions of what ultimately became the Act. Some versions sought to prohibit unequal pay for" }, { "docid": "17186587", "title": "", "text": "VII claim. GPO further contends that Judge Richey did not make “findings” adequate to support his order of a new trial. As Rule 63 allows a successor judge to order a new trial when his predecessor issued oral rulings, there would appear to be no need for the findings GPO demands. We therefore hold that Judge Richey properly exercised his discretionary power under Rule 63 to order a new trial of the Equal Pay Act claims. 2. Retroactive Consent Under the Equal Pay Act. Suits for recovery under the Equal Pay Act differ from the mainstream of class actions under the Federal Rules. Under the Equal Pay Act, members of the class may recover only if they file consents to join the class of parties plaintiff, 29 U.S.C. § 216(b) (Supp. Ill 1979). Conversely, members who do not “opt in” to the Equal Pay Act class will not be bound by a decision as to other plaintiffs. See, e.g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975). Class actions brought under Fed.R.Civ.P. 23(b)(3), such as Title VII suits in which monetary relief is sought, by contrast are “opt-out” suits, binding and benefiting all members of the class who do not specifically request exclusion. Under the Federal Rules, two different kinds of notice may be appropriate in “opt-out” class action suits. First, members of the potential class are to be sent “the best notice to all members who can be identified through reasonable effort,” of the pendency of the suit and the fact that they will be bound unless they opt out. Fed.R. Civ.P. 23(c)(2). Second, they may be notified of the implications of the suit for other legal rights that they may have. Fed.R. Civ.P. 23(d)(2) (requiring notice “for the protection of the members of the class or otherwise for the fair conduct of the action”). After conditional certification of their Title VII suit as a class action under Rule 23, plaintiffs moved to have notice of the pend-ency of the Equal Pay Act claims sent to all potential plaintiffs pursuant to Rule 23(d). R. 28. Judge" }, { "docid": "17186578", "title": "", "text": "without success, the plaintiffs brought suit under both Title VII and the Equal Pay Act in July 1974. J.A. 21. Their Equal Pay claim contended that the jobs of journeymen bindery workers were equal to some bookbinder jobs and sought recovery accordingly. Under Title VII, the plaintiffs objected to the denial of access to training, craft, and supervisory positions. Also under Title VII, they made the further, more sweeping contention that classifying bookbinders and bindery workers into separate craft and noncraft ladders was itself discriminatory. The Title VII suit was conditionally certified as a class action in December 1974, with the class including all female journeymen bindery workers in the GPO Bindery. J.A. 125. After nearly four years of pretrial and discovery, the case was tried before Judge Waddy in March 1978. At the close of the plaintiffs’ case, GPO moved for dismissal. Judge Waddy made an oral ruling that plaintiffs had shown no right to relief under the Equal Pay Act, but refused to grant GPO’s motion as to the Title VII claims. J.A. II, 3-6. Following Judge Waddy’s death, the case was assigned to Judge Richey. He granted plaintiffs’ motion for a new trial on both the Equal Pay Act and the Title VII claims. J.A. 157. The case was then retried in March 1979, resulting in the liability and relief orders now under review. The substance of these liability and remedy orders can be summarized briefly. Under the Equal Pay Act, Judge Richey found a violation with respect to only one segment of the plaintiff class, the Grade 4 operators of the Smyth sewing machine. Other members of the plaintiff class — Singer and over-sewing machine operators, passport inspectors, and handworkers — were denied Equal Pay Act relief. Because Judge Richey also found GPO’s violation of the Equal Pay Act to be willful, the prevailing Equal Pay Act plaintiffs were awarded both ordinary and liquidated damages for the statutory maximum of three years. Under Title VII, the entire class obtained partial recovery. Judge Richey found that GPO had engaged in a pattern and practice of discrimination by" }, { "docid": "17186579", "title": "", "text": "II, 3-6. Following Judge Waddy’s death, the case was assigned to Judge Richey. He granted plaintiffs’ motion for a new trial on both the Equal Pay Act and the Title VII claims. J.A. 157. The case was then retried in March 1979, resulting in the liability and relief orders now under review. The substance of these liability and remedy orders can be summarized briefly. Under the Equal Pay Act, Judge Richey found a violation with respect to only one segment of the plaintiff class, the Grade 4 operators of the Smyth sewing machine. Other members of the plaintiff class — Singer and over-sewing machine operators, passport inspectors, and handworkers — were denied Equal Pay Act relief. Because Judge Richey also found GPO’s violation of the Equal Pay Act to be willful, the prevailing Equal Pay Act plaintiffs were awarded both ordinary and liquidated damages for the statutory maximum of three years. Under Title VII, the entire class obtained partial recovery. Judge Richey found that GPO had engaged in a pattern and practice of discrimination by denying bindery workers access to craft training and craft and supervisory positions. He refused, however, to find a further Title VII violation in the GPO job classification system itself. To remedy the Title VII violation, the district court fashioned a complex decree as follows: (1) Back Pay. For each pay period, a pool was to be calculated by determining what women bindery workers would have earned during that period, had they filled one-half of all craft and supervisory positions in the Bindery opening after a specified date. The date specified was August 8, 1969, the date of the first Executive Order prohibiting discrimination in GPO but several years before the 1972 authorization of suits under Title VII against the federal government. J.A. 221. The pool was to be shared pro rata among all members of the plaintiff class working during the relevant pay period, with the exception of those who had already recovered back pay under the Equal Pay Act for the same period. The prevailing Equal Pay Act plaintiffs were to share in an" }, { "docid": "17186677", "title": "", "text": "224 (9th Cir. 1951); The Del-Mar-Va, 56 F.Supp. 743 (E.D.Va.1944). . Given our decision that only Grade 4 bindery workers are entitled to relief, not much is at stake here. All five named plaintiffs were Grade 4s, and their Equal Pay Act relief will date from 1974. Twenty-two other Grade 4s filed consents in 1976, the date to which plaintiffs seek to have Equal Pay Act recovery made retroactive. One Grade 4 filed her consent in 1979; and one Grade 4 employed in 1976 remains unaccounted for. . In reaching this conclusion, we intimate no view with regard to the propriety of Equal Pay Act notice in a lawsuit which proceeds under both the Equal Pay Act and Title VII. Such notice was sent without discussion of the issue in a prior case in this circuit, Laffey v. Northwest Airlines, 321 F.Supp. 1041, 1043 (D.D.C. 1971), aff’d, 567 F.2d 429 (D.C.Cir. 1976). At least one circuit has allowed notice in a suit filed under the Equal Pay Act alone. Braun-stein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2d Cir. 1978), cert, denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979). But see Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir. 1977); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975). . Compare Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1174 (3d Cir. 1977) (quoting remarks of Rep. Frelinghuysen and Rep. Goo-dell) with Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert, denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970) (quoting Senate and House Reports in support of “substantially equal” standard). . Senate Report at 3; H.R.Rep.No.309, 88th Cong., 1st Sess. 3 (1963) [hereinafter, House Report ]; Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 2231, 41 L.Ed.2d 1 (1974). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act 1963-1970, 39 U.Cin.L.Rev. 615 (1970). . Sullivan, The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case, 31 Ark.L. Rev. 545 (1978). . See, e.g., Equal Employment Opportunity" }, { "docid": "17186585", "title": "", "text": "to enter judgment on the Equal Pay Act dismissal and inadequately explained his reasons for vacating the dismissal. GPO Brief at 13, 26; GPO Reply Brief at 6-11. Neither contention has merit. The federal rules treat the death or disability of the trial judge as follows: If by reason of death, sickness, or other disability a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. Fed.R.Civ.P. 63. If the trial judge in a non-jury trial becomes disabled before filing findings of fact and conclusions of law, a new trial is probably obligatory, absent consent of the parties to a decision without retrial. GPO contends that Judge Waddy’s findings of fact and conclusions of law issued from the bench sufficed to permit Judge Richey to enter judgment. We need not reach this issue, however, because Rule 63 at most gives a successor judge the power to enter judgment; it does not obligate him to do so. The premise underlying Rule 63 — that the successor judge may be unable to assess with security the significance or credibility of what his predecessor heard — is amply justified in complex litigation such as this. We note particularly with respect to this case that 1) a motion to reconsider the Equal Pay Act bench ruling was sub judice when Judge Waddy died; 2) Judge Waddy was unable to amplify his findings as he announced he would; and 3) under Fed.R. Civ.P. 54(b), it would have been open to Judge Waddy to reconsider and revise the Equal Pay ruling at any time before entry of judgment on the Title" }, { "docid": "17186596", "title": "", "text": "v. Northwest Airlines, Inc., 567 F.2d 429 (D.C.Cir.1976), the leading Equal Pay Act case in this circuit, adopted the “substantially equal” test in reliance on Corning Glass. Our discussion of the test read in full: For “[it] is now well settled that jobs need not be identical in every respect before the Equal Pay Act is applicable”; [citing Coming Glass] the phrase “equal work” does not mean that the jobs must be identical, but merely that they must be “substantially equal.” A wage differential is justified only if it compensates for an appreciable variation in skill, effort or responsibility between otherwise comparable job work activities. 567 F.2d at 449 (citations omitted). The “substantially equal” test has now been adopted by every other circuit to pass on the question. Judge Richey employed this test in the case at bar, J.A. 195, and we reaffirm our approval of it. This case, however, presents a difficult and largely unexplored problem in the interpretation of the Equal Pay Act: whether work may be substantially equal, in spite of the fact that it is performed on different machines. Bindery worker Grade 4s work on the Smyth sewing machine; bookbinders do not. GPO contends that this fact is sufficient as a matter of law to preclude the finding of an Equal Pay violation. Judge Richey concluded that it was not, and that work on the Smyth was sufficiently like the work performed by bookbinders on other machines as to allow relief under the Act. J.A. 195. In determining that work on different machines could be “substantially equal,” Judge Richey was guided by Department of Labor regulations: [T]he performance of jobs on different machines or equipment would not necessarily result in a determination that the work so performed is unequal within the meaning of the statute if the equal pay provisions otherwise apply. 29 C.F.R. § 800.123 (1980). This court has paid substantial deference to Department of Labor regulations in interpreting the Act, see Laffey, 567 F.2d at 449, and we continue to do so. Congress never specifically considered whether work performed on different machines might be" }, { "docid": "17186630", "title": "", "text": "discriminatorily denied plaintiffs access to these positions. J.A. 192. All these violations, Judge Richey held, extended to the entire plaintiff class. In this appeal, GPO concedes that it violated Title VII by failing to provide craft training or supervisory opportunities for the Grade 3 and 4 bindery workers who operated machines. With regard to the lower grade bindery workers, however, GPO contests Judge Richey’s finding of Title VII liability. GPO argues that the lower grade bindery workers failed to establish their prima facie case and that GPO established the business necessity of the practices found discriminatory. Plaintiffs in their turn argue that Judge Richey’s conclusions on Title VII liability do not go far enough. Judge Richey viewed the separate classification of bookbinders and bindery workers as discriminatory because of its effects upon advancement opportunities within GPO. Plaintiffs, however, urge us to conclude that the maintenance of separate pay scales for craft and non-craft employees at GPO is itself a classification in violation of Title VII. We uphold Judge Richey’s liability findings in their entirety. 1. The Lower Grade Bindery Workers: Plaintiffs’ Prima Facie Case. Plaintiffs’ prima facie case of discriminatory denial of access to training and supervisory positions began with numbers: there were no female bookbinders at GPO until 1975; conversely, there was only one male bindery worker; bookbinders received training on new machines but bindery workers did not; only six bindery workers entered the apprenticeship program; the Bindery supervisory ranks were unrelentingly male. The “cold numbers” were brought “convincingly to life,” International Brotherhood of Teamsters v. United States 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977), by tales of individual sexual bias and discouragement, J.A. 180-81. GPO argues that this case was insufficient as a matter of law because it did not include individualized showings that the lower grade bindery workers were qualified for and interested in craft training. GPO insists that such showings were made legally necessary to a prima facie case of disparate treatment by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), a seminal decision" }, { "docid": "10859271", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW CHARLES R. RICHEY, District Judge. This class action is brought by five named plaintiffs on behalf of the 324 female Journeyman Bindery Workers of all grades (“JBWs”) employed in the Binding Division of the United States Government Printing Office (“GPO”) on May 25, 1973. All of the named plaintiffs are grade 4 JBWs who have operated the Smyth sewing machines in the Binding Division as early as 1971. The defendant, John J. Boyle, is the Public Printer of the United States. He is sued in his official capacity as chief administrative officer of the GPO, which produces printed matter for the United States government. Pursuant to 44 U.S.C. § 305, he classifies all positions in the Production Department, which includes the Binding Division, and establishes the wages paid for these positions. The plaintiffs allege that the defendant has continued to engage in patterns and practices of sex discrimination against the class in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., and Executive Order 11478, 34 F.R. 12985 (1969), as amended by Executive Order 11590, 36 F.R. 7831 (1970). Plaintiffs also allege that defendant’s practices violate the Equal Pay Act of 1963, 29 U.S.C. § 206(d), which became applicable to the defendant by 1974 amendments to the Fair Labor Standards Act, Pub.L. 93-259, § 6(a)(1). After exhausting their administrative remedies concerning their Title VII and Equal Pay Act claims, the plaintiffs filed suit on July 24, 1974. The Title VII class was conditionally certified pursuant to Fed. R.Civ.Proc. 23(b)(2) on December 4, 1974. The case was originally tried before the late Judge Waddy in March, 1978, but Judge Waddy died before issuing a final decision; and a new trial was held before this Court from March 7, 1979 through March 22, 1979. At the time of trial, the named plaintiffs and 191 other members of the Title VII class had filed consents to become members of the Equal Pay Act class. The primary issues before" }, { "docid": "17186643", "title": "", "text": "See, e.g., Chisholm v. United States Postal Service, 665 F.2d 482, at 488 (4th Cir. 1981); Womack v. Lynn, 504 F.2d 267 (D.C.Cir.1964); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974). The 1972 Amendments to Title VII also limited back pay recovery to two years from the date of plaintiff’s administrative complaint, 42 U.S.C. § 2000e-5(g) (1976). The significant legislative history emphasizes that GPO had an obligation to shed discriminatory practices at least from 1969 on. The 1972 Amendments to Title VII only added a forum and procedures for federal employees — it was not the date of birth of the right to a federal job free of racial or sexual bias. In this case, the plaintiffs’ administrative complaint was filed on May 25, 1973. Judge Richey awarded back pay for the full two-year period, to May 25,1971. Amounts of back pay were to be measured by events reaching back still further, to the date of the Executive Order prohibiting discrimination within GPO; plaintiffs’ back pay pool was to be the additional level of wages they would have achieved, had they filled one-half of all craft and supervisory openings in the Bindery after August 8, 1969. Judge Richey’s back pay award is thus retrospective in two respects. In this section, we consider the retroactivity problem analogous to the problem raised under the Equal Pay Act — whether the two-year period of back pay recovery may reach back before the effective date of the 1972 Amendments. In the next section, we consider whether the amounts of back pay due may be measured on the basis of events beyond the two-year accrual period. As with our consideration of the retrospective reach of the period of Equal Pay Act relief, our analysis here is guided by Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). See Lawrence v. Staats, 665 F.2d 1256, 26 Fair Empl.Prac. Cas. 1225 (D.C.Cir.1981) (opinion accompanying denial of rehearing). We are to apply the law as it now is — authorizing a two-year period of back pay recovery —" }, { "docid": "17186684", "title": "", "text": "male tasks included snow shoveling and buffing while additional female tasks included scouring down bathrooms and washing down furniture) with Usery v. Columbia University, 568 F.2d 953 (2d Cir. 1977) (not error to find heavy cleaning required greater effort on the part of male custodians). Courts also have disagreed about whether different kinds of effort may be compared. Compare Hodgson v. Daisy Manufacturing Co., 317 F.Supp. 538 (W.D.Ark.1970), aff’d in part and rev’d in part on other grounds, 445 F.2d 823 (8th Cir. 1971) (physical effort required in pressing larger gun barrels may be weighed against mental effort required in pressing smaller barrels) with Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977) (improper to compare physical and mental effort). Commentators tend to conclude that different kinds and amounts of effort may be balanced under the Equal Pay Act. E.g.. Johnson, The Equal Pay Act of 1963: A Practical Analysis, 24 Drake L.Rev. 570, 587 (1975); Sullivan, supra note 13, at 568. . GPO Brief at 23. As GPO objects both to comparisons of different types of effort and to balancing effort against other Equal Pay Act factors, we note that GPO’s own expert witness used a job evaluation plan that assigned “points” to job factors such as experience or physical demand and summed the results. The summation explicitly weighed different aspects of a job against each other. GPO’s objections, therefore, undercut the presentation of its own witness. . GPO was brought under the FLSA on May 1, 1974. For the five named plaintiffs, the three-year period of Equal Pay Act recovery runs from July 24, 1974. For 22 others, it extends from April 15, 1976; and for one, it begins March 7, 1979. J.A. 229. . We note that GPO does not contest Judge Richey’s finding that the Equal Pay Act violation was willful, and his resulting decision to set the applicable limitations period at three years. . See also Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct." }, { "docid": "17186589", "title": "", "text": "Waddy denied the motion, J.A. 127, as the trial judge may do if notice appears unnecessary to protect the rights of others or conduct the lawsuit fairly. After the second trial, but before any decision was rendered, plaintiffs moved Judge Ri-chey to require distribution of notice of the Equal Pay Act claims and to allow consents to be filed retroactively. R. 148. Judge Richey denied the motion, stating that he “declined” in this instance to depart from the “law of the case” declared by Judge Waddy. J.A. 159. On this appeal, the plaintiffs contend that Judge Waddy’s original ruling was in error, and should be reversed together with Judge Richey’s perpetuation of it. We in turn decline to disturb Judge Ri-chey’s ruling. Although Rule 63 allows a successor to a disabled judge to order a new trial, this grant of power does not encompass relitigation of all issues decided by the predecessor judge. The policy behind Rule 63 is that the successor judge, not having heard witnesses at the trial, may be unable to resolve issues of credibility. 7 J. Moore, Federal Practice X 63.05 (2d ed. 1979); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2922 (1973). See also FDIC v. Siraco, 174 F.2d 360 (2d Cir. 1949). Rule 63 “is not an invitation to reargument before a new judge of legal questions that had been determined by the original judge.” 11 C. Wright & A. Miller § 2922 (1973). It is true that the doctrine of the law of the case, unlike res judicata but like stare decisis, does not preclude reconsideration of erroneous decisions. See IB J. Moore, Federal Practice 10.04 (2d ed. 1980). While judicial deference to colleagues is desirable to deter “judge-shopping,” reconsideration of errors may be especially appropriate where the predecessor judge cannot perform the task himself. See 18 C. Wright & A. Miller § 4478 (1980); Vestal, Law of the Case: Single-Suit Preclusion, 1967 Utah L.Rev. 1, 17. However, given the fact that consent forms were circulated by the bindery workers’ union, R. 31, we are not compelled to conclude" }, { "docid": "17186586", "title": "", "text": "is probably obligatory, absent consent of the parties to a decision without retrial. GPO contends that Judge Waddy’s findings of fact and conclusions of law issued from the bench sufficed to permit Judge Richey to enter judgment. We need not reach this issue, however, because Rule 63 at most gives a successor judge the power to enter judgment; it does not obligate him to do so. The premise underlying Rule 63 — that the successor judge may be unable to assess with security the significance or credibility of what his predecessor heard — is amply justified in complex litigation such as this. We note particularly with respect to this case that 1) a motion to reconsider the Equal Pay Act bench ruling was sub judice when Judge Waddy died; 2) Judge Waddy was unable to amplify his findings as he announced he would; and 3) under Fed.R. Civ.P. 54(b), it would have been open to Judge Waddy to reconsider and revise the Equal Pay ruling at any time before entry of judgment on the Title VII claim. GPO further contends that Judge Richey did not make “findings” adequate to support his order of a new trial. As Rule 63 allows a successor judge to order a new trial when his predecessor issued oral rulings, there would appear to be no need for the findings GPO demands. We therefore hold that Judge Richey properly exercised his discretionary power under Rule 63 to order a new trial of the Equal Pay Act claims. 2. Retroactive Consent Under the Equal Pay Act. Suits for recovery under the Equal Pay Act differ from the mainstream of class actions under the Federal Rules. Under the Equal Pay Act, members of the class may recover only if they file consents to join the class of parties plaintiff, 29 U.S.C. § 216(b) (Supp. Ill 1979). Conversely, members who do not “opt in” to the Equal Pay Act class will not be bound by a decision as to other plaintiffs. See, e.g., LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975). Class actions brought under Fed.R.Civ.P." }, { "docid": "811891", "title": "", "text": "CHARLES R. RICHEY, District Judge. BACKGROUND Plaintiffs seek an award of reasonable attorneys fees pursuant to 42 U.S.C. § 2000e-5(k) for services rendered in connection with three unsuccessful attempts by Local 4-B of the Graphic Arts International Union, AFL-CIO, to intervene in the above-captioned case. Before the Court are plaintiffs’ Application for Attorneys’ Fees Against Local 4-B, Local 4-B’s Opposition, Plaintiffs’ Reply Memoranda and the various affidavits and documents filed with these pleadings or referred to therein. In May of 1973, five females filed an administrative complaint on behalf of approximately 325 Journeyman Bindery Workers (JBWs) employed in the Bindery Division of the Government Printing Office (GPO) alleging violations of the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. After an exhaustion of administrative remedies, the plaintiffs filed a class action in this Court. The complaint alleged a broad pattern and practice of discrimination by GPO and requested injunctive, declaratory and monetary relief. On October 1, 1979, after full discovery and trial before the Court, this Court issued a memorandum opinion on the issue of liability and found that Grade 4 JBW plaintiffs who operated Smyth Sewing Machines were entitled to relief under the Equal Pay Act and Title VII. Following the submission of proposed orders and memoranda, on May 20, 1980, the Court issued a relief order with a supporting memorandum. 499 F.Supp. 1147. Among the provisions of the order were that plaintiffs were entitled to back pay relief under the Equal Pay Act and Title VII prior to the effective date of those statutes and that plaintiffs were entitled to quota and other prospective relief under Title VII. The Court made several amendments to the relief order on July 8, 1980. Local 4-B filed a motion to intervene in order to have the Court rescind two of these amendments. The Court denied the Local’s mo tion on September 16, 1980 and stayed certain portions of the May 20th order pending appeal. GPO appealed the Court’s order of May 20, 1980 and plaintiffs filed a cross-appeal" }, { "docid": "17186629", "title": "", "text": "defendants to come forth with evidence that the practice had a legitimate business purpose. Finally, the plaintiffs have the opportunity to show that defendant’s asserted purpose was pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972); Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981). Judge Richey concluded that the plaintiffs had borne their ultimate burden of persuasion with respect to a number of practices at GPO. Specifically, he found first that the division drawn by GPO between the bookbinder and bindery worker classifications foreclosed opportunities within the Bindery. J.A. 192. Also found discriminatory was GPO’s failure to provide on-the-job craft training to bindery workers, except by way of the limited, four-year apprenticeship program which gave bindery workers no credit for their own apprenticeship training and forced them to take a pay cut. J.A. 188-92. GPO’s requirement that only workers with craft status could compete for supervisory positions was found to have discriminatorily denied plaintiffs access to these positions. J.A. 192. All these violations, Judge Richey held, extended to the entire plaintiff class. In this appeal, GPO concedes that it violated Title VII by failing to provide craft training or supervisory opportunities for the Grade 3 and 4 bindery workers who operated machines. With regard to the lower grade bindery workers, however, GPO contests Judge Richey’s finding of Title VII liability. GPO argues that the lower grade bindery workers failed to establish their prima facie case and that GPO established the business necessity of the practices found discriminatory. Plaintiffs in their turn argue that Judge Richey’s conclusions on Title VII liability do not go far enough. Judge Richey viewed the separate classification of bookbinders and bindery workers as discriminatory because of its effects upon advancement opportunities within GPO. Plaintiffs, however, urge us to conclude that the maintenance of separate pay scales for craft and non-craft employees at GPO is itself a classification in violation of Title VII. We uphold Judge Richey’s liability findings in their entirety. 1." }, { "docid": "17186676", "title": "", "text": "of law. He concludes that some courts have allowed the successor to enter judgment, but notes that precedent from this circuit, Brennan v. Grisso, 198 F.2d 532 (D.C.Cir.1952) may cut against even permitting the successor to enter judgment. 7 J. Moore, Federal Practice j| 63.04 (2d ed. 1979). There is no suggestion by Moore or any other authority that the successor judge is bound by the oral rulings of his predecessor. . In arguing that the Federal Rules required Judge Richey to enter judgment, GPO confuses discretionary power with obligation. All of the authority cited by GPO for the proposition that Judge Richey had to enter judgment, GPO Reply Brief at 10-11, supports instead the proposition that the successor judge is empowered to enter judgment based on his predecessor’s findings. Bangor & Aroostook Ry. v. Brotherhood of Locomotive Firemen & Engineers, 314 F.Supp. 352 (D.D.C.1970), aff’d in part and rev’d in part on other grounds, 442 F.2d 812 (D.C.Cir.1971); Makah Indian Tribe v. Moore, 93 F.Supp. 105 (W.D.Wash. 1950), rev’d on other grounds, 192 F.2d 224 (9th Cir. 1951); The Del-Mar-Va, 56 F.Supp. 743 (E.D.Va.1944). . Given our decision that only Grade 4 bindery workers are entitled to relief, not much is at stake here. All five named plaintiffs were Grade 4s, and their Equal Pay Act relief will date from 1974. Twenty-two other Grade 4s filed consents in 1976, the date to which plaintiffs seek to have Equal Pay Act recovery made retroactive. One Grade 4 filed her consent in 1979; and one Grade 4 employed in 1976 remains unaccounted for. . In reaching this conclusion, we intimate no view with regard to the propriety of Equal Pay Act notice in a lawsuit which proceeds under both the Equal Pay Act and Title VII. Such notice was sent without discussion of the issue in a prior case in this circuit, Laffey v. Northwest Airlines, 321 F.Supp. 1041, 1043 (D.D.C. 1971), aff’d, 567 F.2d 429 (D.C.Cir. 1976). At least one circuit has allowed notice in a suit filed under the Equal Pay Act alone. Braun-stein v. Eastern Photographic Laboratories, Inc.," }, { "docid": "17186584", "title": "", "text": "that Judge Richey erred in ordering a new trial on the Equal Pay Act issues, rather than entering judgment for GPO on the basis of Judge Waddy’s oral ruling. Plaintiffs contend that Judge Richey erred in following Judge Waddy’s decision not to order notice of the Equal Pay Act claims to class members or to allow filing of consents retroactive to the initial date of filing. Record (R.) 218A, J.A. 158. We affirm Judge Richey on both points. 1. The Retrial. At the close of the plaintiffs’ case in the first trial, Judge Wad-dy dismissed the claim for relief under the Equal Pay Act on GPO’s motion pursuant to Fed.R.Civ.P. 41(b) (allowing dismissal if upon the facts and the law the plaintiff has shown no right to relief). Judge Waddy’s ruling from the bench was accompanied by a definition of the plaintiffs’ Equal Pay Act burden and oral “findings of fact,” and a promise to reduce both to writing. Tr. Mar. 28, 1978, at 2-14, J.A. II, 1-13. GPO complains that Judge Richey was obligated to enter judgment on the Equal Pay Act dismissal and inadequately explained his reasons for vacating the dismissal. GPO Brief at 13, 26; GPO Reply Brief at 6-11. Neither contention has merit. The federal rules treat the death or disability of the trial judge as follows: If by reason of death, sickness, or other disability a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. Fed.R.Civ.P. 63. If the trial judge in a non-jury trial becomes disabled before filing findings of fact and conclusions of law, a new trial" }, { "docid": "17186675", "title": "", "text": "Bindery that it was not a place for a woman. Tr. Mar. 16, 1979, at 5. . Some women have been promoted in the Bindery since the district court judgment in this case. See Washington Post, Nov. 12, 1981, § D.C. at 1, col. 1. . See, e.g., Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977). See generally 7 J. Moore, Federal Practice j| 63.05 (2d ed. 1979); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2922 (1973). It may be the duty of the trial judge even with the parties’ consent to decision without retrial if the credibility of witnesses is in question. See Federal Deposit Ins. Corp. v. Siraco, 174 F.2d 360 (2d Cir. 1949). . Rule 52 requires the court to “find the facts specially and state separately its conclusions of law thereon ...” but does not require that they be stated in writing. Moore poses the hypothetical of what a successor judge may do when his predecessor issues oral findings of fact and conclusions of law. He concludes that some courts have allowed the successor to enter judgment, but notes that precedent from this circuit, Brennan v. Grisso, 198 F.2d 532 (D.C.Cir.1952) may cut against even permitting the successor to enter judgment. 7 J. Moore, Federal Practice j| 63.04 (2d ed. 1979). There is no suggestion by Moore or any other authority that the successor judge is bound by the oral rulings of his predecessor. . In arguing that the Federal Rules required Judge Richey to enter judgment, GPO confuses discretionary power with obligation. All of the authority cited by GPO for the proposition that Judge Richey had to enter judgment, GPO Reply Brief at 10-11, supports instead the proposition that the successor judge is empowered to enter judgment based on his predecessor’s findings. Bangor & Aroostook Ry. v. Brotherhood of Locomotive Firemen & Engineers, 314 F.Supp. 352 (D.D.C.1970), aff’d in part and rev’d in part on other grounds, 442 F.2d 812 (D.C.Cir.1971); Makah Indian Tribe v. Moore, 93 F.Supp. 105 (W.D.Wash. 1950), rev’d on other grounds, 192 F.2d" } ]

[ { "docid": "17476318", "title": "", "text": "PER CURIAM: This is an action for damages brought pro se by an inmate of a state correctional institution under 42 U.S.C.A. § 1983. Plaintiff alleges that property belonging to him was unlawfully seized and retained by defendant police officers. The complaint was dismissed by the district court upon the motion of defendant police officers because it was not filed within the applicable two year limitation period. The limitation period for filing an action under 42 U.S.C.A. § 1983 must be determined by reference to the limitation period prescribed by the law of the state where the litigation arose. Boshell v. Alabama Mental Health Bd., 473 F.2d 1369, 1370 (5th Cir. 1973). The district court appears to have correctly applied the two year statute to this action. Vernon’s Tex.Rev.Civ.Stat. Ann. Art. 5526(1), (2). Plaintiff alleges he was arrested and his property unlawfully seized December 16, 1969. His complaint was not filed in the district court until September 15, 1975, beyond the two year period. Plaintiff maintains that the two year time period was interrupted while he sought various administrative remedies. It is not necessary, however, to exhaust administrative remedies before an action of this kind can be filed. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). Therefore, pursuing administrative remedies would not interrupt the limitation period. Neither the pro se plaintiff nor the attorneys for the defendant police officers appear to have called to the attention of the district judge the Texas statute, Article 5535, which provides that: If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues ... a person imprisoned . . . , the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title. Vernon’s Tex.Rev.Civ.Stat.Ann. Art. 5535. The court failed to consider whether" } ]

[ { "docid": "23048792", "title": "", "text": "“defer action on cases properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Fay v. Noia, 372 U.S. 391, 415, 420, 83 S.Ct. 822, 839, 9 L.Ed.2d 837, 857 (1963), citing Darr v. Burford, 389 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761, 767 (1950). There is little question that civil remedies based on the violation of federal rights may be sought in federal court without exhaustion of state court remedies where the federal remedy is independent of any kind of habeas corpus relief or is merely supplementary to possible state action. In Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492, 502 (1961), the Supreme Court held that plaintiffs had properly stated a cause of action under 42 U.S. C.A. § 1983 against 13 policemen for damages resulting from an unconstitutional search which did not lead to criminal action. Exhaustion of state remedies was not necessary: “it is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id. at 183, 81 S.Ct. at 482, 5 L.Ed.2d at 503. In Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court held that a prisoner’s suit charging that prison conditions worked a deprivation of constitutional rights properly pleaded a cause of action under 42 U.S.C.A. § 1983 and that exhaustion was not required. See also Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). In Preiser v. Rodriguez, supra, the Supreme Court directly confronted the conflict between habeas corpus and civil rights actions. That case" }, { "docid": "7756364", "title": "", "text": "they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e. g., McNeese v. Board of Education, 373 U.S. 668 [83 S.Ct. 1433, 10 L.Ed.2d 622] (1963); Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961). Steffel v. Thompson, supra 415 U.S. at 472-73, 94 S.Ct. at 1222, 39 L.Ed.2d at 522. The district court, disregarding these Supreme Court cases, relied instead upon the Second Circuit’s opinion in Eisen v. Eastman, supra. In Eisen, the Second Circuit considered a due process attack upon the New York City Rent and Rehabilitation Law under § 1983. With respect to the exhaustion of administrative remedies, the court reviewed the McNeese, Damico, and Houghton opinions and nevertheless con- eluded that exhaustion was required in the circumstances presented in Eisen. However, in Wilwording, Preiser, Steffel, and Ellis, decided after Eisen, the Supreme Court did not recede from its prior statements involving exhaustion, but to the contrary reaffirmed them in unqualified terms. Indeed, even the Second Circuit has not required exhaustion when First Amendment rights are implicated as contrasted with the due process claim asserted in Eisen. See Plano v. Baker, 504 F.2d 595 (2d Cir. 1974). We therefore conclude in this case, where Hochman’s § 1983 action charges the defendants with retaliating against him for his exercise of First Amendment rights, that McNeese and its progeny do not require exhaustion. In so concluding we do no more than adhere to the repeated and unqualified expressions of the Supreme Court that “we have not required exhaustion of state judicial or administrative remedies . . . ” in suits under § 1983. Steffel v. Thompson, supra, 415 U.S. at 472-73, 94 S.Ct. at 1222, 39 L.Ed.2d at 522. See also Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975); McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975) (in banc), cert. granted, 423 U.S. 923, 96 S.Ct. 264, 46 L.Ed.2d 249, 44 U.S.L.W. 3263 (1975), cert. dismissed as improvidently granted, -U.S.-, 96" }, { "docid": "22109832", "title": "", "text": "in employment and not a labor law action, asserting rights under a collective bargaining contract. Indeed, the focus of this civil rights suit is an attack by plaintiffs on the contract itself as embodying racially discriminatory practices. Title VII and section 1981 are “parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Consequently, in fashioning a substantive body of law under section 1981 the courts should, in an effort to avoid undesirable substantive law conflicts, look to the principles of law created under Title VII for direction. It is well-established that under Title VII there is no exhaustion of contractual remedies requirement. Alexander v. Gardner-Denver Co., supra, 415 U.S. 36, 94 S.Ct. 1011; Rios v. Reynolds Metal Co., 467 F.2d 54, 57 (5th Cir. 1972); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). Moreover, an exhaustion of remedies requirement does not appear to apply to claims for relief brought under any of the civil rights acts. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); D’Amico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed. 2d 647 (1967); and King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). We are of the view, therefore, that plaintiffs could properly proceed against the union under section 1981 without first exhausting any contractual remedies under the collective bargaining agreement. Ill Wisconsin Steel contends that the evidence does not support the district court’s holding that “[pjrior to April, 1964, Wisconsin Steel discriminated in the hiring of bricklayers in violation of 42 U.S.C. § 1981.” We believe the record supports, the conclusion that Wisconsin Steel engaged in racially discriminatory hiring policies with respect to the position of bricklayer prior to the enactment of Title VII. Wisconsin Steel did not hire its first black bricklayer until April 1964 although blacks had made inquiries seeking employment as early as 1947. In addition, the evidence reflects a discriminatory departmental transfer" }, { "docid": "7756362", "title": "", "text": "his administrative remedies. The district court, relying upon the Second Circuit’s decision in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), entered an order on March 6,1975 dismissing the action without prejudice for failure to exhaust administrative remedies. Hochman filed a timely notice of appeal from this order, and hence this Court has jurisdiction pursuant to 28 U.S.C. § 1291. Thereafter, on March 13, 1975, the Board of Education granted Hochman a hearing. On April 29,1975 the Board voted to terminate Hochman effective December 25, 1974. This decision is now on appeal to the Commissioner of Education under N.J.S.A. 18A:6-9. II. The Supreme Court has consistently noted that exhaustion of state remedies, whether judicial or administrative, is not required prior to the commencement of an action under 42 U.S.C. § 1983 in federal court. In McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622, 625 (1963), the Court emphasized that the congressional purpose in enacting § 1983 was “to provide a remedy in the federal courts supplementary to any remedy any State might have.” See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492, 502 (1961). Thus, in McNeese, the Court rejected the argument that failure to exhaust administrative remedies barred suit in federal court under § 1983. Thereafter, in Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed.2d 418, 421 (1971); Preiser v. Rodriguez, 411 U.S. 475, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439, 452 (1973); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505, 522 (1974) and Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281 (1975), the Court has adhered to the nonexhaustion rule: When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) —as" }, { "docid": "11478936", "title": "", "text": "the prison’s policy was implemented, not the Directive itself. Defendants do not appeal this decision. Nevertheless, the district court granted the defendants motion to dismiss. Sua sponte, the court held that the complaint showed that Ricketts had not exhausted administrative remedies and that this failure was fatal to the section 1983 action. Plaintiff appeals on three grounds. First, he claims that the district court should have given him notice of and an opportunity to respond specifically to the issue of exhaustion. Second, he argues that the record does not support the judge’s finding that he failed to exhaust administrative remedies. Third, he takes the position that exhaustion of administrative remedies is not required in actions under section 1983. Since our reading of recent Supreme Court cases leads us to conclude that Rick-etts need not exhaust his administrative remedies before bringing an action under section 1983 in federal court, we do not need to consider the first two contentions. The general rule in actions under section 1983 is that state remedies need not be exhausted as a prerequisite to federal jurisdiction. This rule was formulated in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the Supreme Court found in the legislative history of the Civil Rights Act the intent that the federal remedy in section 1983 be “supplementary” to any remedy any State might have. Id. at 183, 81 S.Ct. 473. The Supreme Court later extended this rule specifically to include exhaustion of administrative remedies. See McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Thereafter, the Court has often repeated without discussion that administrative remedies need not be exhausted. See Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 492-93 n. 10, 93 S.Ct." }, { "docid": "23378346", "title": "", "text": "the federal law which appropriately governs federal civil rights actions. When poured into the federal vessel, the state statute becomes a federal legal precept, and all aspects of the proceeding must be measured by the federal interest implicated in the case. This limitation on the absorption of state law is necessary because “[s]tate legislatures do not devise their [statutes of limitations] with national interests in mind[. I]t is the duty of the federal courts[, therefore,] to assure that the importation of state law will not frustrate or interfere with the implementation of national policies.” Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 97 S.Ct. 2447, 2454, 53 L.Ed.2d 402 (1977). Thus, in considering the potential applica bility of Pennsylvania’s six-month statute of limitations, we must keep as our polestar the precept that the analogous state law should not be borrowed if it is “inconsistent with the federal policy underlying [§ 1983].” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295 (1975). After carefully considering § 1983’s legislative history, the Supreme Court articulated four major policies underlying the statute. First, it can “override certain kinds of state laws,” to-wit, “any invidious legislation by states against the rights or privileges of citizens of the United States.” Monroe v. Pape, 365 U.S. 167, 173, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Second, “it provide^] a remedy where state law [is] inadequate.” Id. Third, it provides “a federal remedy where the state remedy, though adequate in theory, [is] not available in practice.” Id. at 174, 81 S.Ct. at 477. Finally, it provides “a remedy in the federal courts supplementary to any remedy any State might have.” McNeese v. Board of Educ., 373 U.S. 668, 672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963). In sum, § 1983 offers “a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972). It should thus be accorded “a" }, { "docid": "22574407", "title": "", "text": "(1924). Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), is the seminal decision with respect to the need for exhaustion in actions brought under 42 U.S.C. § 1983. There, in a suit under § 1983 to redress shocking violations of fourth amendment rights, the claim was made that plaintiffs should have exhausted their state judicial remedies before suing in a federal court, but the argument was rejected: It is no answer that the State has a law which if enforced would give relief. The federal remedy [§ 1983] is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court. 365 U.S. at 183, 81 S.Ct. at 482. While Monroe v. Pape constituted no radical departure from the preexisting doctrine of exhaustion of state judicial remedies, it was applied two years later in McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), as authority for the proposition that in suits under § 1983 there was also no need to exhaust state administrative remedies. In McNeese, plaintiffs sought to enjoin racial segregation in an Illinois public school system. The district court granted a motion to dismiss the complaint on the ground that plaintiffs had not exhausted the administrative remedies provided by Illinois law, and the Court of Appeals affirmed on the same theory. In reversing, the Supreme Court called attention to its holding in Monroe v. Pape that one purpose of § 1983 was “to provide a remedy in the federal courts supplementary to any remedy any State might have.” 373 U.S. at 672, 83 S.Ct. at 1435. Specifically, it said, “[i]t is immaterial whether respondents’ conduct is legal or illegal as a matter of state law. Such claims are entitled to be adjudicated in the federal courts.” 373 U.S. at 674, 83 S.Ct. at 1437 (citations omitted). It is true as the district" }, { "docid": "15528331", "title": "", "text": "against the desirability of exercising what he considered to be his constitutional rights. If disturbance occurs in school, the words of Judge Tuttle’s dissent in L. W. Ferrell v. Dallas Independent School Dist., 392 F.2d 697 (5th Cir. 1968), seem apropos: “These boys * * * were barred because it was anticipated, by reason of previous experiences, that their fellow students in some instances would do things that would disrupt the serenity or calm of the school. It is these acts that should be prohibited, not the expressions of individuality by the suspended students.” 392 F.2d at 706. Seventh, Defendants contend plaintiff has failed to exhaust his administrative remedies, namely an appeal to the school board and a hearing. One answer to this contention is that three times in three successive days plaintiff, the last time with his mother, was at school and at later times the mother talked to school officials over the telephone and at no time did anyone suggest to plaintiff or his mother that he had an administrative right or should pursue it. A firmer answer however is found in the decided cases. Minnesota law would seem to provide that plaintiff is entitled to a summary appeal of his temporary suspension from classes. The plaintiff's rights asserted in this case however are federal constitutional rights based upon the Fourteenth Amendment and federal statutes. It has been repeatedly held that exhaustion of state remedies is not required to sustain federal court jurisdiction of claims asserted under 42 U.S. C. § 1983. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L. Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed. 2d 492 (1961); Rivers v. Royster, 360 F.2d 592, 594 (4th Cir. 1966); Ferrell v. Dallas Indep. School Dist., 261 F.Supp. 545, 549 (N.D.Tex.1966), aff'd 392 F.2d 697 (5th Cir. 1968), cert. denied 393 U.S. 508, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968) (dissenting opinion, Douglas, J.); Madera v. Board of Education, 267 F.Supp. 356, 363-364 (S.D.N.Y.1967), rev'd on other grounds, 386 F.2d 778 (2d Cir.), cert." }, { "docid": "19994482", "title": "", "text": "S.Ct. 397, 88 L.Ed. 497 (1944). In these claims that he was denied his liberty without due process, plaintiff has clearly alleged acts which independently constitute deprivations of his federal constitutional “rights, privileges, or immunities,” and which are therefore actionable under 42 U.S.C. § 1983. O’Connor v. Donaldson, supra, 422 U.S. at 573-76, 95 S.Ct. 2486. “It is no answer that the State has a law which if enforced would give relief. The federal remedy [of § 1983] is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). It is of course well established that a plaintiff need not exhaust state judicial proceedings before proceeding in federal court under § 1983. Monroe v. Pape, supra ; see Huffman v. Pursue, Ltd., 420 U.S. 592, 609-10 n. 21, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). This universal rule is no less applicable to complaints alleging the deprivation of constitutional rights in the context of civil commitment by reason of mental illness. Woe v. Mathews, 408 F.Supp. 419, 426 (E.D. N.Y.1976), aff’d mem. sub nom. Woe v. Weinberger, 562 F.2d 40 (2d Cir. 1977). Although the Second Circuit does require exhaustion of administrative remedies in certain circumstances, Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970); see Morgan v. La Vallee, 526 F.2d 221, 223 (2d Cir. 1975); Fuentes v. Roher, 519 F.2d 379, 386-87 (2d Cir. 1975); see also Runyon v. McCrary, 427 U.S. 160, 186 n. *, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (Powell, J., concurring); Gibson v. Berryhill, 411 U.S. 564, 574-75, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), defendants have failed to suggest any such" }, { "docid": "23448212", "title": "", "text": "Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973). The federal remedy under Section 1983 “is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). See also McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435-36, 10 L.Ed.2d 622 (1963). Cf. Note, Res Judicata: Exclusive Federal Jurisdiction & The Effect of Prior State Court Determinations, 53 Va.L.Rev. 1360 (1967). Exhaustion is not required in Section 1983 cases. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed. 2d 418 (1971) (per curiam); Sugar v. Curtis Circulation Co., 377 F.Supp. 1055, 1059 (S.D.N.Y.1974). Nor is a bar raised by the fact that, theoretically, the constitutional questions these plaintiffs now present “might have been” litigated in the state proceedings. Lombard v. Board of Education of City of New York, 502 F.2d 631, 636 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975). As the court stated in Lombard: “To apply res judicata to a remedy which ‘need not be first sought and refused’ in the state court, and which actually was not sought would be to overrule the essence of Monroe v. Pape and Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).” Id. at 635. See also Newman v. Board of Education of the City School Dist. of New York, 508 F.2d 277 (2d Cir.), cert. denied, 420 U.S. 1004, 95 S.Ct. 1447, 43 L.Ed.2d 762 (1975). In the Lombard case, a dismissed teacher unsuccessfully prosecuted two Article 78 proceedings in the state courts, during which he never specifically raised any constitutional issue. Thereafter, he instituted a Section 1983 action, claiming that he had been denied procedural due process in his dismissal as a teacher. The defendants argued that Mr. Lombard’s constitutional claims were barred because he “should have raised them in" }, { "docid": "9872310", "title": "", "text": "PER CURIAM. Appellant Everson has appealed from an order of the District Court granting defendant’s motion to dismiss his complaint for wrongful discharge, filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, as being time barred. Everson was discharged by his employer, McLouth Steel Corporation (McLouth), on February 9, 1970 after Everson had assaulted and fractured the jaw of his foreman, on the premises of the company. In his complaint, however, Everson alleged that his discharge was the product of racial discrimination. At the time of his discharge the applicable statute required Everson to file a charge with the Equal Employment Opportunity Commission (EEOC) within ninety days of the date of his discharge. 42 U.S.C. § 2000e-5(d). The statute was amended in 1972 extending the time to 180 days. 42 U.S.C. § 2000e-5(e). As found by the District Court and admitted by the plaintiff, he did not file his charge with EEOC within the time allotted by either of the above statutes. Everson claimed that the period of limitation was tolled until after he had exhausted his remedies under the grievance procedure provided in the collective bargaining agreement entered into between McLouth and the union and under the claim which he filed with the Michigan Civil Rights Commission. After exhausting these remedies plaintiff’s complaint was not filed in the District Court until January 16, 1975. The District Court, relying on our decision in Guy v. Robbins & Myers, Inc., 525 F.2d 124 (6th Cir. 1975), granted McLouth’s motion to dismiss the complaint. We in turn relied on the decisions of the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). We held that Guy’s remedies under the grievance procedures provided in the collective bargaining agreement, under the Michigan Civil Rights Commission, and under Title VII were mutually exclusive, and that plaintiff’s failure in Guy to file her charge with EEOC" }, { "docid": "22300265", "title": "", "text": "is barred because she submitted her complaint of racial discrimination to a state fair employment agency and then sought judicial review in the state court of the agency’s unfavorable determination. I submit that application of res judicata here is neither required nor desirable, and I therefore dissent. In keeping with the desire to give the national policy against racial discrimination the “highest priority,” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), Congress has “long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). The victim of racial discrimination may be able to sue in the federal courts under the Civil Rights Act of 1866, 42 U.S.C. § 1981, as plaintiff has done here, or under the Civil Rights Act of 1871, 42 U.S.C. § 1983, or under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The victim may also file charges with state administrative agencies, such as the New York State Division of Human Rights, or with the federal Equal Employment Opportunity Commission (EEOC); see 42 U.S.C. §§ 2000e-5(b), (c). “And in general, submission of a claim to one forum does not preclude a later submission to another” because of the “congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.” Gardner-Denver, supra, 415 U.S. at 47—48, 94 S.Ct. at 1019. Thus, resort to a state administrative proceeding will not bar a subsequent federal action either under Title VII, see Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1972); Batiste v. Furnco Construction Corp., 503 F.2d 447 (7th Cir. 1973), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975), or under § 1981. See Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1723, 44 L.Ed.2d 295 (1975) (federal court may “stay [§ 1981]" }, { "docid": "23448211", "title": "", "text": "138 (2d Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974), have no application. In Tang the plaintiff-attorney sought a federal determination of precisely the same questions that were previously decided by the state court. After being denied admission to the New York bar for failure to meet the residence requirements, Mr. Tang commenced a state court action challenging the constitutionality of the requirements. Id. at 140-41 and 141 n. 2. When the Appellate Division decided against him Mr. Tang started a Section 1983 action in the federal court, raising the same issues he had posed in his unsuccessful state action. Tang — at least in the majority’s opinion — rested on the familiar doctrine thaUa state court decision on a constitutional question voluntarily submitted is conclusive between the parties until modified by appeal. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 417-419, 84 S.Ct. 461, 466, 11 L.Ed.2d 440 (1964); Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973). The federal remedy under Section 1983 “is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). See also McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435-36, 10 L.Ed.2d 622 (1963). Cf. Note, Res Judicata: Exclusive Federal Jurisdiction & The Effect of Prior State Court Determinations, 53 Va.L.Rev. 1360 (1967). Exhaustion is not required in Section 1983 cases. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed. 2d 418 (1971) (per curiam); Sugar v. Curtis Circulation Co., 377 F.Supp. 1055, 1059 (S.D.N.Y.1974). Nor is a bar raised by the fact that, theoretically, the constitutional questions these plaintiffs now present “might have been” litigated in the state proceedings. Lombard v. Board of Education of City of New York," }, { "docid": "19810736", "title": "", "text": "of remedies doctrine is not applicable when an otherwise good cause of action is brought under § 1983. E. g., Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 1113 (1972); Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). That provision creates a remedy separate from and in addition to any state remedies. Houghton v. Shafer, 392 U.S. 639, 640, 88 S. Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 & n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Bd. of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1962); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960). Since we do conclude that plaintiffs’ claim that a denial of a minimally adequate education violates their rights under the Fourteenth Amendment raises a colorable constitutional challenge, plaintiffs are thereby entitled to seek relief in a federal forum without regard to whether state administrative remedies were pursued. See McCray v. Burrell, 516 F.2d 357, 361-65 (4th Cir. 1975), petition for certiorari filed, 44 U.S.L.W. 3072 (August 5, 1975); Burnett v. Short, 441 F.2d 405, 406 (5th Cir. 1971). We recognize, however, that several lower courts have questioned the proposition that the exhaustion doctrine is never applicable to actions brought under § 1983 and have suggested that dismissal should be warranted where plaintiff failed to utilize a state remedy that offered plaintiff prompt and complete redress. See, e. g., Eisen v. Eastman, 421 F.2d 560, 569 (2nd Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L. Ed.2d 75 (1970); Kochie v. Norton, 343 F.Supp. 956 (D.Conn.1972). Nevertheless, the Supreme Court has on repeated occasions refused to establish an exhaustion requirement in these cases" }, { "docid": "7756363", "title": "", "text": "§ 1983 was “to provide a remedy in the federal courts supplementary to any remedy any State might have.” See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481, 5 L.Ed.2d 492, 502 (1961). Thus, in McNeese, the Court rejected the argument that failure to exhaust administrative remedies barred suit in federal court under § 1983. Thereafter, in Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 409, 30 L.Ed.2d 418, 421 (1971); Preiser v. Rodriguez, 411 U.S. 475, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439, 452 (1973); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505, 522 (1974) and Ellis v. Dyson, 421 U.S. 426, 432, 95 S.Ct. 1691, 1695, 44 L.Ed.2d 274, 281 (1975), the Court has adhered to the nonexhaustion rule: When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) —as they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights. See, e. g., McNeese v. Board of Education, 373 U.S. 668 [83 S.Ct. 1433, 10 L.Ed.2d 622] (1963); Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961). Steffel v. Thompson, supra 415 U.S. at 472-73, 94 S.Ct. at 1222, 39 L.Ed.2d at 522. The district court, disregarding these Supreme Court cases, relied instead upon the Second Circuit’s opinion in Eisen v. Eastman, supra. In Eisen, the Second Circuit considered a due process attack upon the New York City Rent and Rehabilitation Law under § 1983. With respect to the exhaustion of administrative remedies, the court reviewed the McNeese, Damico, and Houghton opinions and nevertheless con- eluded that exhaustion was required in the circumstances presented in Eisen. However, in Wilwording, Preiser, Steffel, and Ellis, decided after Eisen, the Supreme Court did not recede from its prior statements involving exhaustion, but to the" }, { "docid": "22014541", "title": "", "text": "for reemployment at that time,” (Complaint ¶ 10) and a charge of discrimination was filed with the EEOC on September 23j 1974, plaintiff’s leave of absence did not officially expire until September 30, 1974 (See Herr Affidavit ¶ 4 and Exhibit C thereto). Notwithstanding the filing of the charge on September 23, the Personnel Department of the Port Authority, at the urging of the EEOC, spoke with plaintiff about the possibility of reemployment in a different position. This “negotiation” apparently indicated the willingness of the Port Authority to consider its previous statement, as well as the filing of charges, as non-final acts. Moreover, the Supreme Court has recognized that the filing of a Title VII charge with the EEOC does not toll the applicable statute of limitations, at least in a § 1981 case. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Therefore, plaintiff’s discharge was consummated only when his leave of absence terminated. Since suit was brought within a year of such termination, the action is timely under either limitation period. Dismissal is urged on behalf of defendant Port Authority on the grounds that the Port Authority cannot be sued under 42 U.S.C. §§ 1981 and 1983 because it is not a “person” within the meaning of those statutes. I will consider each section separately. Defendant relies on Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) for the proposition that a municipal corporation is not a “person” as defined in 42 U.S.C. § 1983. Plaintiff contends that the Port Authority is not a municipal corporation but an agency, and thus Forman v. Community Socs., Inc., 500 F.2d 1246 (2d Cir. 1974), rev’d on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975), distinguishing between municipal corporations and agencies for the purposes of suit under § 1983, is controlling. An examination of the nature of the Port Authority indicates that" }, { "docid": "11478937", "title": "", "text": "a prerequisite to federal jurisdiction. This rule was formulated in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the Supreme Court found in the legislative history of the Civil Rights Act the intent that the federal remedy in section 1983 be “supplementary” to any remedy any State might have. Id. at 183, 81 S.Ct. 473. The Supreme Court later extended this rule specifically to include exhaustion of administrative remedies. See McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Thereafter, the Court has often repeated without discussion that administrative remedies need not be exhausted. See Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 492-93 n. 10, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Wilwording v. Swen-son, 404 U.S. 249, 251-52, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 312 n. 4, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). While the exhaustion discussion in these cases can be interpreted as ambiguous or as unnecessary dicta, see, e. g., Cordova v. Reed, 521 F.2d 621, 624 (2d Cir. 1975); Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), this court has agreed with the view of the majority of courts of appeals that administrative remedies, irrespective of their adequacy, need not be exhausted by a plaintiff seeking a federal remedy under section 1983. Hochman v. Board of Education, 534 F.2d 1094 (3d Cir. 1976). In that case, a nontenured teacher brought an action against the school board alleging that" }, { "docid": "11478940", "title": "", "text": "this circuit that a state prisoner must allege exhaustion of state administrative remedies. The opinion first noted that the remedies available were likely to be futile, and concluded, In any event, resort to these remedies is unnecessary in light of our decisions in Monroe v. Pape, 365 U.S. 167, 180-183, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622; and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647. On the basis of these decisions . . . the judgment of the Court of Appeals is reversed . . . There was some doubt whether the mention of the futility of the procedure available to Houghton was necessary to the result in the case, see, e. g., Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). This doubt was dispelled by the Court in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). The per curiam opinion emphasized that, although futility of administrative remedy had been mentioned, Houghton “held that ‘in any event, resort to these remedies is unnecessary.’ ” Id. 404 U.S. at 252, 92 S.Ct. at 409. Later Supreme Court cases involving section 1983 actions by prisoners reiterated the position that exhaustion of administrative remedies is not required. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Preiser v. Rodriguez, 411 U.S. 475, 482, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ; cf. Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975). Several courts of appeals have agreed that the Supreme Court cases have established the rule that prisoners need not exhaust administrative remedies before bringing an action under § 1983. See, e. g., Hardwick v. Ault, 517 F.2d 295, 296 (5th Cir. 1975); McCray v. Burrell, 516 F.2d 357, 360-65 (4th Cir. 1975) (en banc), cert. dismissed as improvidently granted, 426 U.S." }, { "docid": "7740415", "title": "", "text": "discrimination. The dismissal was affirmed by the State Human Rights Appeal Board on August 9, 1972. On September 7,1972, Keyse filed a charge ' of discrimination with the E.E.O.C., which found probable cause and on May 27, 1977 issued its notice of right to sue. On June 22, 1977, Keyse commenced the present action in the District Court. The statute of limitations for claims brought under 42 U.S.C. § 1981 is derived from the most analogous state statute. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y.C.P.L.R. § 214(2) — liability based on a statute. See, e. g., Kaiser v. Cahn, 510 F.2d 282, 284-85 (2d Cir. 1974); Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970). Since Keyse alleged discrimination up until September 1968, but the present action was not commenced until nearly nine years later in June 1977, Keyse’s claim under 42 U.S.C. § 1981 was clearly time-barred and hence was correctly dismissed. A prerequisite to the maintenance of a Title VII action is timely filing with the E.E.O.C. United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Prior to March 24, 1972, the effective date of the 1972 amendments to Title VII, 42 U.S.C. § 2000e-5(d) [now 42 U.S.C. § 2000e-5(e)] required that where state agency proceedings had been instituted, the charge had to be filed' with the E.E.O.C. within 210 days of the alleged unlawful employment practice, or within thirty days after notice of the termination of the state proceedings, whichever came earlier. For Keyse the alleged unlawful employment practice occurred no later than September 1968, and hence the 210 day period would have ended sometime in 1969. However, Keyse did not file her charge with the E.E.O.C. until September 1972. Keyse contends that she should be excused from the operation of" }, { "docid": "8651485", "title": "", "text": "argues that the state court litigation was merely an exhaustion of remedies before asserting his § 1983 rights in a federal forum; and that the state court judgments cannot, therefore, bar his federal action. It seems now settled that the doctrine of exhaustion of remedies, usually applicable in a habeas corpus proceeding, is usually inapplicable in a § 1983 action. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). And the doctrine of res judicata, not usually applicable in habeas corpus, applies to suits under § 1983, as in most other civil suits. See Preiser v. Rodriguez, 411 U.S. 475, and cases cited at 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). But see Justice Brennan, dissenting, Id., at 509 n. 14, 93 S.Ct. 1827. And see also Ney v. California, 439 F.2d 1285 (9th Cir. 1971). Where a second suit between the same parties or their privies is on the same cause of action, the final judgment in the prior action is conclusive as to all matters which were actually litigated as well as those which could have been litigated. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876); Providential Development Co. v. United States Steel Co., 236 F.2d 277 (10th Cir. 1956); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 579, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Restatement of Judgments §§ 61-65 (1942). This long established doctrine is based upon the policy of preventing endless or repetitive litigation by effectively coercing the plaintiff to present all his grounds for recovery in the first proceeding. Id., at § 63, comment a. In this action, Spence sues the same City officials or their successors on the same facts, changing only his theory and remedy. Thus, in state court, he sought an order requiring a § 541 hearing; in federal court, reinstatement and money damages for failure to accord a due process hearing. Nonetheless," } ]